University of Santo Tomas

FACULTY OF CIVIL LAW (1734)

CIVIL LAW
Questions Asked More Than Once

QuAMTO 2023
 The UST GOLDEN NOTES is the annual student-edited bar review material of
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 Faculty of Civil Law (1734)

ACADEMICS COMMITTEE 2023

ANGELA BEATRICE S. PEÑA KATHERINE S. POLICARPIO

SECRETARIES-GENERAL

RON-SOPHIA NICOLE C. ANTONIO CRIMINAL LAW

HERLENE MAE D. CALILUNG LABOR LAW AND SOCIAL LEGISLATION

POLITICAL LAW AND

PATRISHA LOUISE E. DUMANIL
PUBLIC INTERNATIONAL LAW

LEGAL AND JUDICIAL ETHICS WITH

ALEXANDRA MAUREEN B. GARCIA
PRACTICAL EXERCISES

HANNAH JOY C. IBARRA COMMERCIAL LAW

JEDIDIAH R. PADUA CIVIL LAW

PAULINNE STEPHANY G. SANTIAGO TAXATION LAW

DIANNE MICAH ANGELA D. YUMANG REMEDIAL LAW

EXECUTIVE COMMITTEE

PAULA ANDREA F. PEÑAFLOR COVER DESIGN ARTIST

 Faculty of Civil Law (1734)

CIVIL LAW COMMITTEE 2023

RAUL GABRIEL M. MANALO

CIVIL LAW SUBJECT HEAD

MEMBER
AILEEN ALEXABELLE M. DE LEON

ADVISERS
ATTY. SHEEN JOSHUA B. BARRIETA
ATTY. KENNETH JAMES CARLO C. HIZON
ATTY. KING JAMES CARLO C. HIZON
 Faculty of Civil Law (1734)

FACULTY OF CIVIL LAW

UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P.
DEAN REGENT

ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

JUDGE PHILIP A. AGUINALDO

SWDB COORDINATOR

LENY G. GADIANA, R.G.C.

GUIDANCE COUNSELOR
 Faculty of Civil Law (1734)
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MENTORS AND INSPIRATION
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For being our guideposts in understanding the intricate sphere of Civil Law.
– Academics Committee 2023
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 SBCA

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 QuAMTO (1987-2022)

PERSONS AND FAMILY RELATIONS C. RETROACTIVITY OF THE LAW

(2011 BAR)

I. PERSONS Q: Congress passed a law imposing taxes on income

(2022, 2016, 2014, 2012, 2011, 2009, 2008, 2002 BAR)
A. WHEN LAW TAKES EFFECT DOCTRINE
(2022, 2016, 2014, 2011, 2002 BAR)
Q: Sec. 1 of P.D. NO. 755 states:
Section 1. Declaration of National Policy – It is hereby
declared that the policy of the State is to provide readily
available credit facilities to the coconut farmers at
preferential rates, that this policy can be expeditiously
and efficiently realized by the implementation of the
“Agreement for the Acquisition of a Commercial Bank for
the Benefit of the Coconut Farmers’ executed by the
Philippine Coconut Authority, the terms of which
’Agreement’ are hereby incorporated by reference; xxx”
earned out of a particular activity that was not
previously taxed. The law, however, taxed incomes
already earned within the fiscal year when the law took
effect. Is the law valid? (2011 BAR)
(a) No, because laws are intended to be
prospective, not retroactive.
(b) No, the law is arbitrary in that it taxes income
that has already been spent.
(c) Yes, since tax laws are the lifeblood of the
nation.
(d) Yes, tax laws are an exception; they can be given
retroactive effect.
A: (d) YES, tax laws are an exception; they can be given
retroactive effect. (UPLC Suggested Answers)
D. MANDATORY OR PROHIBITORY LAWS

A copy of the Agreement was not attached to the

Presidential Decree. P.D. No: 755 was published in the
Official Gazette but the text of the Agreement described E. WAIVER OF RIGHTS
in Section 1 was not published. Can the Agreement in
question be accorded the status of a law? Explain. (2016
BAR)

A: NO, the Agreement cannot be accorded the status of a F. PRESUMPTION AND APPLICABILITY OF CUSTOM
law. Art. 2 of the NCC provides that laws shall take effect (2011 BAR)
after 15 days following the completion of their publication
in the Official Gazette unless it is otherwise provided. In
Nagkakaisang Maralitav v Military Shrine Services (G.R. Nos.
187587 & 187654, 05 June 2013), the Supreme Court held G. LEGAL PERIODS
that the addendum to the Proclamation issued by President
Marcos has no force and effect considering that the same
was not published in the Official Gazette. Moreover, the
Supreme Court in Cojuangco, Jr. v. Republic (G.R. No. 180705,
27 November 2012), which is on all fours with this case, H. TERRITORIALITY PRINCIPLE
ruled that while the Agreement was incorporated by (2012 BAR)
reference, it was not reproduced or attached as an annex to
the law and therefore cannot be accorded to the status of a
law. Publication of the full text of the law is indispensable
for its effectivity. (UPLC Suggested Answers)

B. IGNORANCE OF THE LAW

1 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
2. LEX REI SITAE
I. CONFLICT OF LAWS (2007 BAR)
(2014, 2012, 2011, 2009, 2007 BAR)
Q: Write "TRUE' if the statement is true or “FALSE” if the
statement is false. If the statement is FALSE, state the
1. LEX NATIONALII reason. Roberta, a Filipino, 17 years of age, without the
(2014, 2012, 2011, 2009, 2007 BAR) knowledge of his parents, can acquire a house in
Australia because Australian Laws allow aliens to
acquire property from the age of 16. (2007 BAR)
Q: On 01 Dec. 2000, Dr. Juanito Fuentes executed a
holographic will, wherein he gave nothing to his
A: TRUE. Since Australian Law allows aliens to acquire
recognized illegitimate son, Jay. Dr. Fuentes left for the
property from the age of 16, Roberta may validly own a
United States, passed the New York medical licensure
house in Australia, following the principle of lex rei sitae
examinations, resided therein, and became a
enshrined in Art. 16, NCC which states: “Real property as
naturalized American citizen. He died in New York in
well as personal property is subject to the law of the country
2007. The laws of New York do not recognize
where it is situated.” Moreover, even assuming that legal
holographic wills or compulsory heirs. (2009 BAR)
capacity of Roberta in entering the contract in Australia is
governed by Philippine law under Art. 15, NCC, the contract
(a) Can the holographic will of Dr. Fuentes be
of sale is not void but merely voidable under the NCC.
admitted to probate in the Philippines? Why or
Hence, even under Philippine law, she will acquire
why not?
ownership over the property she bought until the contract
is annulled. (UPLC Suggested Answers)
A: YES, the holographic will of Dr. Fuentes may be admitted
to probate in the Philippines because there is no public
ALTERNATIVE ANSWER:
policy violated by such probate. The only issue at probate is
the due execution of the will which includes the formal
FALSE. The Civil Code provides that laws relating to family
validity of the will. As regards formal validity, the only issue
rights and duties, or to the status, condition and legal
the court will resolve at probate is whether or not the will
capacity of persons are binding upon the citizens of the
was executed in accordance with the form prescribed by the
Philippines, even though living abroad. (Art. 15, NCC) The
law observed by the testator in the execution of his will. For
age of majority under Philippine law is 18 years (Rep. Act
purposes of probate in the Philippines, an alien testator may
No. 6809), hence, Roberta, being only 17 years old, has no
observe the law of the place where the will was executed
legal capacity to acquire and own land. (UPLC Suggested
(Art 17), or the formalities of the law of the place where he
Answers)
resides, or according to the formalities of the law of his own
country, or in accordance with the Philippine Civil Code.
(Art. 816) Since Dr. Fuentes executed his will in accordance 3. LEX LOCI CELEBRATIONIS
with the Philippine law, the Philippine court shall apply the (2012 BAR)
NCC in determining the formal validity of the holographic
will. The subsequent change in the citizenship of Dr. 4. DOCTRINE OF RENVOI
Fuentes did not affect the law governing the validity of his
will. Under the NCC, which was the law used by Dr. Fuentes,
the law enforced at the time of execution of the will shall
govern the formal validity of the will. (Art. 795) (UPLC J. HUMAN RELATIONS IN RELATION TO PERSONS
Suggested Answers) (2022, 2020-21, 2014, 2011, 1996 BAR)

(b) Assuming that the will is probated in the

Philippines, can Jay validly insist that he be Q: When one exercises a right recognized by law,
given his legitime? Why or why not? knowing that he thereby causes an injustice to another,
the latter is entitled to recover damages. This is known
A: NO, Jay cannot insist because under New York law he is as the principle of (2011 BAR)
not a compulsory heir entitled to a legitime. The national
law of the testator determines who his heirs are, the order (a) Res ipsa loquitur
that they succeed, how much their successional rights are, (b) Damnum absque injuria
and whether or not a testamentary disposition in his will is (c) Vicarious Liability
valid. (Art 16, NCC) Since, Dr. Fuentes was a US citizen, the (d) Abuse of Rights
laws of the New York determines who his heirs are. And
since the New York law does not recognize the concept of A: (d) Abuse of Rights. (UPLC Suggested Answers)
compulsory heirs, Jay is not a compulsory heir of Dr.
Fuentes entitled to a legitime. (UPLC Suggested Answers)

U N I V E R S IT Y O F S A N T O T O M A S 2
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
Q: Janice and Jennifer are sisters. Janice sued Jennifer
and Laura, Jennifer’s business partner for recovery of
property with damages. The complaint did not allege
that Janice exerted earnest efforts to come to a
compromise with the defendants and that such efforts
failed. The judge dismissed the complaint outright for
failure to comply with a condition precedent. Is the
dismissal in order? (2011 BAR)
a. No, since Laura is a stranger to the sisters,
Janice has no moral obligation to settle with
her.
b. Yes, since court should promote amicable
settlement among relatives.
c. Yes, since members of the same family, as
parties to the suit, are required to exert earnest
efforts to settle their disputes before coming to
court.
d. No, the family council, which would ordinarily
mediate the dispute, has been eliminated under
the Family Code.
A: A. (UPLC Suggested Answers)
Q: A bride declined to appear on her wedding day.
Instead, she sent a note to her prospective groom,
saying that she needed to be honest to herself by
admitting that the institution of marriage was not her.
The bride wrote that she came to this conclusion after
contemplating on the tweets of the #LabGuru. She also
wrote that to atone for her non-appearance, she would
post a glowing recommendation of the prospective
groom as a partner on her Facebook, Twitter,
Instagram, and Tiktok accounts. The couple had
previously dated for almost 8 years. The whole time,
the prospective groom had been loyal and caring. It was
the bride who covered all the wedding expenses.
Heartbroken and embarrassed, the prospective groom
sued the prospective bride for moral damages, alleging
that she had breached her promise to marry him. Will
the suit prosper? Explain briefly. (2020-21 BAR)
A: YES, the suit will prosper. As a rule, breach of promise to
marry per se is not an actionable wrong. There must be an
act independent of the breach of the promise to marry like
expenses incurred, carnal knowledge as a result or moral
seduction, or pregnancy to entitle the aggrieved party the
award of damages. (Wassmer v. Velez, G.R. No. L-20089, 26
Dec. 1964; Baksh v. Court of Appeals, G.R. No. 97336, 19 Feb.
1993; Hermosisima vs. Court of Appeals, G.R. No. L-14628, 30
Sept. 1960) In one case, the Court ruled that although breach
of promise to marry is not actionable, to formally set a
wedding and go through all the above-described
preparation and publicity, only to walk out of it when the
matrimony is about to be solemnized is palpably and
unjustifiably contrary to good customs for which the bride
must be held answerable in damages in accordance with
Art. 21, NCC. (Wassmer v. Velez, G.R. No. L-20089, 26 Dec.
1964) Clearly, the groom is entitled to damages based on
Art. 21, NCC which provides that any person who willfully
3 U N I V E R S IT Y O F S A N T O T O M A S
causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate
the latter for the damage. To walk out of the wedding on the
day of its solemnization falls under Art. 21, NCC and may
justify the award of moral damages. (Bar Q&A by
Paguirigan, 2023)
Q: Six tenants sued X, the landowner, for willfully
denying them water for their farms, which water
happened to flow from land under X’s control, his
intention being to force them to leave his properties.
Is X liable for his act and why? (2011 BAR)
(A) No, because the tenants must be content with
waiting for rainfall for their farms.
(B) No, since X owns both the land and the water.
(C) Yes, because the tenants’ farms have the
natural right of access to water wherever it is
located.
(D) Yes, since X willfully caused injury to his
tenants contrary to morals, good customs or
public policy.
A: (D) Yes, since X willfully caused injury to his tenants
contrary to morals, good customs or public policy. (Bar Q&A
by Paguirigan, 2023)
Q: Noel is the son of Sps. Marie and Benedict. Benedict
has passed away. For Noel’s 7th birthday, his paternal
grandparents offered and pay for his birthday party. In
coordination with Marie, the grandparents booked the
party venue, signed the contacts with the caterer and
the entertainers, finalized the guestlist, and paid all
amounts due. Marie promised to them to bring Noel to
the party. A week before the scheduled birthday party,
Marie decided that she would not bring Noel to the
party, and that she would instead take him on an out-of-
town trip on the day of the party. Marie could never
forget that her parents-in-law initially opposed
Benedict’s marriage to her because she was a former
burlesque dancer. Marie did not notify the
grandparents of her plan to skip the birthday party.
During the party, the grandparents kept trying to get in
touch with her but she ignored all their calls. The
grandparents and the guests who went to the party
were very dismayed that Noel was not present. When
the grandparents asked Marie why she did not bring
Noel to the party, she simply replied, “I am his mother,
and I decide where he goes!” To which, Noel’s
grandmother retorted, “Anak mo lang s’ya! Hindi mo
s’ya pag-aari!” The grandparents seek your advice on
whether there is legal basis to hold Marie liable for the
damages that they have suffered as a result of her acts.
What is your advice? Explain briefly. (2022 BAR)
FACULTY OF CIVI L LAW
 CIVIL LAW
A: I will advise the grandparents that they may seek
damages from Marie on the basis of the principle in human K. CAPACITY TO ACT
relations that any person who willfully causes loss or injury (2022, 2020-21, 2019, 2014, 2013, 2012, 2011, 2008,
to another in a manner that is contrary to morals, good 2003 2000, 1999, 1998 BAR)
customs, or public policy shall compensate the latter for the
damage. (Art. 21, NCC)
Q: Which of the following is NOT included in the
Although Marie has the parental authority over her minor
attributes of juridical capacity? (2012 BAR)
child, her promise to allow Noel to attend the party
arranged by his grandparents only to renege on that
(a) Juridical capacity is inherent in every natural
promise was an act which is contrary to good customs. In
person, and therefore it is not acquired.
addition, the promise given by Marie was the reason why
(b) Juridical capacity is lost only through death.
the grandparents made arrangements and entered into
(c) Juridical capacity is the fitness to be the subject
contracts with the caterer and entertainers for which they
of legal relations.
incurred expenses. There was evident bad faith on the part
(d) Juridical capacity cannot exist without capacity
of Marie when she did not notify the grandparents that she
to act.
would not bring Noel to the party. Hence, there is a cause of
action for damages based on Art. 21. (Central Bar Q&A by
A: (d) Juridical capacity cannot exist without capacity to act.
Paguirigan, 2023)

Q: A corporation which owns a hospital was sued along

Q: Sps. Magtanggol managed and operated a gasoline
with a physician for medical malpractice. The
station on a 1,000 sq.m. lot which they leased from
corporation moved to dismiss the case, arguing that it
Francisco Bigla-awa. The contract was for a period of 3
was only the physician, as the natural person, who
years. When the contract expired, Francisco asked the
could be the subject of any kind of suit. In other words,
spouses to peacefully vacate the premises. The spouses
the corporation argued that it was not a legal person. Is
ignored the demand and continued with the operation
the position of the corporation owning the hospital
of the gasoline station. One month after, Francisco, with
legally tenable? Explain briefly. (2020-21 BAR)
the aid of a group of armed men, caused the closure of
the gasoline station by constructing fences around it.
A: NO, the position of the corporation is not tenable. A
Was the act of Francisco and his men lawful? Why?
person may be natural or juridical. A corporation is a
(2014 BAR)
juridical person vested with the personality as soon as it is
duly constituted in accordance with law. (Art. 44, NCC) As
A: No, the act of Francisco was not lawful. Even if the lessee's
such, it may acquire property and incur obligations and may
right to occupy the premises has expired, the lessor cannot
sue and be sued in its corporate name. (Art. 46, NCC)
physically oust the lessee from the leased premises if the
Moreover, in medical malpractice cases, the duty of
latter refuses to vacate. The lessor must go through the
providing quality medical service is no longer the sole
proper channels by filing an appropriate case for unlawful
prerogative and responsibility of the physician based on the
detainer or recovery of possession. Every person has a
vicarious liability of the hospitals under the theories of
right' to be respected in his possession and should he be
respondent superior, apparent authority, or agency by
disturbed therein he shall be protected in or restored to said
estoppel. (Professional Services, Inc. vs. Agana, G.R. No.
possession by the means established by the laws and the
126297, 31 Jan. 2007) (Central Bar Q&A by Paguirigan, 2023)
Rules of Court (Article 539, Civil Code). The act of Francisco
and his men constitute an abuse of rights because even if he
has the right to recover possession of his property, he must 1. RESTRICTIONS ON CAPACITY TO ACT
act with justice and give the lessees their day in court and
observe honesty and good faith (Article 19, Civil Code). 2. BIRTH AND DEATH OF NATURAL PERSONS
(2022, 2014, 2013, 2012, 2011, 2008, 2003, 1999 BAR)

Q: Because of X’s gross negligence, Y suffered injuries

that resulted in the abortion of the fetus she carried. Y
sued X for, among other damages, P1,000,000 for the
death of a family member. Is Y entitled to indemnity for
the death of the fetus she carried? (2011 BAR)

(a) Yes, since the fetus is already regarded as a

child from conception, though unborn.
(b) No, since X’s would not have known that the
accident would result in Y’s abortion.
(c) No, since birth determines personality, the

U N I V E R S IT Y O F S A N T O T O M A S 4
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
accident did not result in the death of a person.
(d) Yes, since the mother believed in her heart that
she lost a child.
A: (c) No, since birth determines personality, the accident
did not result in the death of a person.
Q: During Remy’s pregnancy, her father Gavin executed
a will bequeathing his rest house in Calatagan, Batangas
to Remy’s unborn child. While Gavin and Remy, who
was then 7 months pregnant, were on their way to
Calatagan, they figured in a car accident on 01 Dec.
2021 which resulted in the instantaneous death of
Gavin and the premature delivery of Remy on the same
day. At 8:30 A.M. on 03 Dec. 2021, the newborn baby
died. Is the devise in favor of the baby valid? Explain
briefly. (2022 BAR)
A: YES, the devise in favor of the baby is valid. Under the law
birth determines personality, but the conceived child shall
be considered born for all purposes favorable to the child
provided it be born under the conditions specified in Art.
41. A fetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if
the fetus had an intrauterine life of less than 7 months, for
it to be considered born and possessed of juridical capacity,
it must survive for 24 hours from complete separation from
the mother's womb.
Based on the facts, Remy was already 7 months pregnant at
the time she prematurely gave birth to her baby and that the
baby was born alive and only died 2 days later. Hence, the
baby acquired juridical capacity entitling it to the devise left
by Gavin. (Central Bar Q&A by Paguirigan, 2023)
Q: If a pregnant woman passenger of a bus were to
suffer an abortion following a vehicular accident due to
the gross negligence of the bus driver, may she and her
husband claim damages from the bus company for the
death of their unborn child? Explain. (2014, 2003 BAR)
A: NO, the spouses cannot recover actual damages in the
form of indemnity for the loss of life of the unborn child.
This is because the unborn child is not yet considered a
person and the law allows indemnity only for loss of life of
person. The mother, however, may recover damages for the
bodily injury she suffered from the loss of the fetus which is
considered part of her internal organ. The parents may also
recover damages for injuries that are inflicted directly upon
them, e.g., moral damages for mental anguish that attended
the loss of the unborn child. Since there is gross negligence,
exemplary damages can also be recovered. (Geluz v. Court of
Appeals, G.R. No. L-16439, 20 July 1961)
Q: Ricky donated P1 million to the unborn child of his
pregnant girlfriend, which she accepted. After six (6)
months of pregnancy, the fetus was born and baptized
as Angela. However, Angela died 20 hours after birth.
Ricky sought to recover the P1 million. Is Ricky entitled
to recover? Explain. (2012 BAR)
5 U N I V E R S IT Y O F S A N T O T O M A S
A: YES, Ricky is entitled to recover the P1 million. The NCC
considers a fetus a person for purposes favorable to it
provided it is born later. (Art. 40, NCC) While the donation
is favorable to the fetus, the donation did not take effect
because the fetus was not born in accordance with the NCC.
To be considered born, the fetus that had an intra-uterine
life of less than 7 months should live for 24 hours from its
complete delivery from the mother’s womb. Since Angela
had an intra-uterine life of less than 7 months but did not
live for 24 hours, she was not considered born and,
therefore, did not become a person. (Art. 41, NCC) Not being
a person, she has no juridical capacity to be a donee, hence,
the donation to her did not take effect. The donation not
being effective, the amount donated may be recovered. To
retain it will be unjust enrichment.
Q: At age 18, Marian found out that she was pregnant.
She insured her own life and named her unborn child as
her sole beneficiary. When she was already due to give
birth, she and her boyfriend Pietro, the father of her
unborn child, were kidnapped in a resort in Bataan
where they were vacationing. The military gave chase
and after one (1) week, they were found in an
abandoned hut in Cavite. Marian and Pietro were
hacked with bolos. Marian and the baby were both
found dead, with the baby's umbilical cord already cut.
Pietro survived. (2012, 1999 BAR)
(a) Can Marian's baby be the beneficiary of the
insurance taken on the life of the mother?
(2012, 2008, 1999 BAR)
A: YES, the baby can be the beneficiary of the life insurance
of Marian. Art. 40, NCC provides that "birth determines
personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided that
it be born later with the conditions specified in Art. 41, NCC.
Art. 41 states that "for civil purposes, the fetus shall be
considered born if it is alive at the time it is completely
delivered from the mother's womb. However, if the fetus
had an intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four (24) hours after
its complete delivery from the maternal womb. The act of
naming the unborn child as sole beneficiary in the insurance
is favorable to the conceived child and therefore the fetus
acquires presumptive or provisional personality. However,
said presumptive personality only becomes conclusive if
the child is born alive. The child need not survive for 24
hours as required under Art. 41 of the Code because
"Marian was already due to give birth," indicating that the
child was more than 7 months old.
(b) Between Marian and the baby, who is presumed
to have died ahead?
A: If the baby was not alive when completely delivered from
the mother’s womb, it was not born as a person, then the
question of who between two persons survived will not be
an issue. Since the baby had an intra-uterine life of more
FACULTY OF CIVI L LAW
 CIVIL LAW
than 7 months, it would be considered born if it was alive,
at the time of its complete delivery from the mother’s
womb. We can gather from the facts that the baby was
completely delivered. But whether it was alive or not has to
be proven by evidence.
If the baby was alive when completely delivered from the
mother’s womb, then it was born as a person and the
question of who survived as between the baby and the
mother shall be resolved by the provisions of the Rules of
Court on Survivorship. This is because the question has
nothing to do with succession. Obviously, the resolution of
the question is needed just for the implementation of an
insurance contract. Under Rule 113, Sec 3(jj(5)), ROC, as
between the baby who was under 15 years old and Marian
who was 18 years old, Marian is presumed to have survived.
In both cases, therefore, the baby never acquired any right
under the insurance policy. The proceeds of the insurance
will then go to the estate of Marian.
(c) Will Pietro, as surviving biological father of the
baby, be entitled to claim the proceeds of the life
insurance on the life of Marian?
A: Since the baby did not acquire any right under the
insurance contract, there is nothing for Pietro to inherit.
Q: Elated that her sister who had been married for five
(5) years was pregnant for the first time, Alma donated
P100,000.00 to the unborn child. Unfortunately, the
baby died one hour after delivery. May Alma recover
the P100,000.00 that she had donated to said baby
before it was born considering that the baby died?
Stated otherwise, is the donation valid and binding?
Explain. (1999 BAR)
A: The donation is valid and binding, being an act favorable
to the unborn child, but only if the baby had an intra-uterine
life of not less than seven (7) months and provided there
was due acceptance of the donation by the proper person
representing said child. If the child had less than seven (7)
months of intra-uterine life, it is not deemed born since it
died less than 24 hours following its delivery, in which case
the donation never became effective since the donee never
became a person, birth being determinative of personality.
3. PRESUMPTION OF SURVIVORSHIP
(2013, 2008, 2000, 1999, 1998 BAR)
Q: Cristy and her late husband Luis had two (2)
children, Rose and Patrick. One summer, her mother-
in-law, aged 70, took the two (2) children, then aged 10
and 12, with her on a boat trip to Cebu. Unfortunately,
the vessel sank en route, and the bodies of the three (3)
were never found. None of the survivors ever saw them
on the water. On the settlement of her mother-in-law's
estate, Cristy files a claim for a share of her estate on the
ground that the same was inherited by her children
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
from their grandmother in representation of their
father, and she inherited the same from them. Will her
action prosper? (2000 BAR)
A: NO, her action will not prosper. Since there was no proof
as to who died first, all three (3) are deemed to have died at
the same time and there was no transmission of rights from
one to another, applying Art. 43, NCC.
Q: Mr. and Mrs. Cruz, who are childless, met with a
serious motor vehicle accident with Mr. Cruz at the
wheel and Mrs. Cruz seated beside him, resulting in the
instant death of Mr. Cruz. Mrs. Cruz was still alive when
help came but she also died on the way to the hospital.
The couple acquired properties worth P1,000,000.00
during their marriage, which are being claimed by the
parents of both spouses in equal shares.
Suppose in the preceding question, both Mr. And Mrs.
Cruz were already dead when help came, so that
nobody could say who died ahead of the other, would
your answer be the same to the question as to who are
entitled to the properties of the deceased couple? (1999
BAR)
A: This being a case of succession, in the absence of proof as
to the time of death of each of the spouses, it is presumed
they died at the same time and no transmission of rights
from one to the other is deemed to have taken place.
Q: Jaime, who is 65, and his son, Willy, who is 25, died in
a plane crash. There is no proof as to who died first.
Jaime’s only surviving heir is his wife, Julia, who is also
Willy’s mother. Willy’s surviving heirs are his mother,
Julia and his wife, Wilma. (1998 BAR)
(a) In the settlement of Jaime’s estate, can Wilma
successfully claim that her late husband, Willy
had a hereditary share since he was much
younger than his father and, therefore, should
be presumed to have survived longer?
A: NO, Wilma cannot successfully claim that Willy had a
hereditary share in his father’s estate. Under Art. 43, NCC
two persons “who are called to succeed each other” are
presumed to have died at the same time, in the absence of
proof as to which of them died first. This presumption of
simultaneous death applies in cases involving the question
of succession as between the two who died, who in this case
are mutual heirs, being father and son.
(b) Suppose Jaime had a life insurance policy with
his wife, Julia, and his son, Willy, as the
beneficiaries. Can Wilma successfully claim
that one-half of the proceeds should belong to
Willy’s estate?
6
 QuAMTO (1987-2022)
A: YES, Wilma can invoke the presumption of survivorship
and claim that one-half of the proceeds should belong to
Willy’s estate, under Rule 131 of the ROC, as the dispute
does not involve succession. Under this presumption, the
person between the ages of 15 and 60 years is deemed to
have survived one whose age was over 60 at the time of
their deaths. The estate of Willy endowed with juridical
personality stands in place and stead of Willy, as
beneficiary.
L. SURNAMES
(2019, 2018, 2012, 2011, 2009, 2008, 1996 BAR)
Q: An illegitimate child may use the surname of his
father when his filiation is established in any of the
following instances, except: (2012 BAR)
Sharon was registered as a female upon birth. While
growing up, she developed male characteristics and
was diagnosed to have congenital adrenal hyperplasia
("CAH") which is a condition where a person possesses
both male and female characteristics. At puberty, tests
revealed that her ovarian structures had greatly
minimized, and she had no breast or menstrual
development. Alleging that for all intents and
appearances, as well as mind and emotion, she had
become a male, she prayed that her birth certificate be
corrected such that her gender should be changed from
female to male, and that her first name should be
changed from Sharon to Shariff.
Silverio and Sharon fell in love and decided to marry.
Realizing that their marriage will be frowned upon in
the Philippines, they travelled to Las Vegas, USA where
they got married based on the law of the place of
celebration of the marriage. They, however, kept their
Philippine citizenship. (2018 BAR)

(a) Filiation has been recognized by the father

(a) Is there any legal basis for the court to
through the record of birth appearing in the
approve Silverio's petition for correction of
civil register
entries in his birth certificate?
(b) Admission of filiation by the father in a public
document.
A: NO, there is no legal basis for the court to approve
(c) Private handwritten instrument is made by the
Silverio’s petition. As settled in the case of Silverio v.
father acknowledging his filiation.
Republic (G.R. No. 174689, 174689, 22 Oct. 2007), our laws
(d) Affidavit by the mother stating the name of his
do not sanction change of name and correction of entry in
true father.
the civil register as to sex on the ground of sex
reassignment. Sex reassignment is not one of the grounds
A: (d) Affidavit by the mother stating the name of his true
for which change of first name may be allowed under R.A.
father. (2009-2017 UST FCL Bar Q&A)
No. 9048. The petition for correction of entry as to sex of the
birth certificate of Silverio cannot prosper, because the said
Q: Illegitimate children, those not recognized by their
document contained no error and it cannot be corrected.
biological fathers, shall use the surname of their (2011
Silverio was born a male. The sex of a person is determined
BAR)
at birth. Considering that there is no law legally recognizing
sex reassignment, the determination of a person’s sex made
(a) biological father subject to no condition.
at the time of his or her birth, if not attended by error, is
(b) mother or biological father, at the mother's
immutable.
discretion
(c) mother
(b) Will your answer be the same in the case of
(d) biological father unless he judicially opposes it.
Sharon's petition?

A: (b) mother or biological father, at the mother's

A: NO, my answer will not be the same. In the case of
discretion. (2009-2017 UST FCL Bar Q&A)
Republic v. Cagandahan (G.R. 166676, 12 Sept. 2008), the
Supreme Court held that where the person is biologically or
Q: Silverio was a woman trapped in a man's body. He
naturally intersex the determining factor in his gender
was born male and his birth certificate indicated his
classification would be what the individual, having reached
gender as male, and his name as Silverio Stalon. When
the age of majority, with good reason thinks of his/her sex.
he reached the age of 21, he had a sex reassignment
Sharon is considered an intersex, because he has CAH,
surgery in Bangkok, and, from then on, he lived as a
which means that she has the biological characteristics of
female. On the basis of his sex reassignment, he filed an
both male and female. Based on that case, Sharon’s petition
action to have his first name changed to Shelley, and his
should be granted since he has simply let nature take its
gender, to female. While he was following up his case
course and has not taken unnatural steps to arrest or
with the Regional Trial Court of Manila, he met Sharon
interfere with what he was born with. The change of name
Stan, who also filed a similar action to change her first
should also be granted considering that it merely
name to Shariff, and her gender, from female to male.
recognizes Sharon’s preferred gender.

7 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
Q: Honorato filed a petition to adopt his minor
illegitimate child Stephanie, alleging that Stephanie's
mother is Gemma Astorga Garcia; that Stephanie has
been using her mother's middle name and surname;
and that he is now a widower and qualified to be her
adopting parent. He prayed that Stephanie's middle
name be changed from "Astorga" to "Garcia," which is
her mother's surname and that her surname "Garcia"
be changed to "Catindig," which is his surname. This the
trial court denied. Was the trial court correct in denying
Hororato's request for Stephanie's use of her mother's
surname as her middle name? Explain. (2012, 1996
BAR)
A: NO, the trial court was not correct. There is no law
prohibiting an illegitimate child adopted by his natural
father to use as middle name his mother's surname. The law
is silent as to what middle name an adoptee may use. In the
case of in re: Adoption of Stephanie Nathy Astorga Garcia
(G.R. No, 148311, 31 Mar. 2005), the Supreme Court ruled
that the adopted child may use the surname of the natural
mother as his middle name because there is no prohibition
in the law against it. Moreover, it will also be for the benefit
of the adopted child who shall preserve his lineage on his
mother's side and reinforce his right to inherit from his
mother and her family. Lastly, it will make the adopted child
conform with the time-honored Filipino tradition of
carrying the mother's surname as the person's middle
name.
Q: Rodolfo, married to Sharon, had an illicit affair with
his secretary, Nanette, a 19-year-old girl, and begot a
baby girl, Rona. Nanette sued Rodolfo for damages:
actual, for hospital and other medical expenses in
delivering the child by caesarean section; moral,
claiming that Rodolfo promised to marry her,
representing that he was single when, in fact, he was
not; and exemplary, to teach a lesson to like-minded
Lotharios. Suppose Rodolfo later on acknowledges
Rona and gives her regular support, can he compel her
to use his surname? Why or why not? (2009 BAR)
Q: If Ligaya, a Filipino citizen residing in the United
States, files a petition for change of name before the
District Court of New York, what law shall apply?
Explain. (2009 BAR)
A: NEW YORK LAW shall apply. The petition of change of
name filed in New York does not concern the legal capacity
or status of the petitioner. Moreover, it does not affect the
registry of any other country including the country of birth
of the petitioner. However, whatever judgment is rendered
in that petition will have effect only in New York. The New
York court cannot, for instance, order the Civil Registrar in
the Philippines to change its records. The judgment of the
New York court allowing a change in the name of the
petitioner will be limited to the records of the petitioner in
New York and the use of her new name in all transactions in
New York. Since the records and processes in New York are
the only ones affected, the New York court will apply New
York law in resolving the petition.
Q: If Henry, an American citizen residing in the
Philippines, files a petition for change of name before a
Philippine court, what law shall apply? Explain (2009
BAR)
A: PHILIPPINE LAW will apply. The petition for change of
name in the Philippines will affect only the records of the
petitioner and his transactions in the Philippines. The
Philippine court can never acquire jurisdiction over the
custodian in the US of the records of the petitioner.
Moreover, change of name has nothing to do with the legal
capacity or status of the alien. Since Philippine records and
transactions are the only ones affected, the Philippine court
may effect the change only in accordance with the laws
governing those records and transactions. That the law
cannot be but Philippine law.

A: NO, he has no right to compel Rona to use his surname.

The law does not give him that right simply because he gave
her support. (R.A. No. 9255) Under the FC, an illegitimate
child was required to use only the surname of the mother.
Under R.A. No. 9255, otherwise known as the Revilla Law,
however, the illegitimate child is given the option to use the
surname of the illegitimate father when the latter has
recognized the former in accordance with law. Since the
choice belongs to the illegitimate child, Rodolfo cannot
compel Rona, if already of age, to use his surname against
her will. If Rona is still a minor, to use the surname of
Rodolfo will require the consent of Rona's mother who has
sole parental authority over her. (2009-2017 UST FCL Bar
Q&A)

U N I V E R S IT Y O F S A N T O T O M A S 8
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
A: (a) The marriage subsists because the marital bond has
M. RULES GOVERNING PERSONS WHO ARE ABSENT not been terminated by death — since Lito is still alive, the
(2020-21, 2019, 2013, 2011, 2008 BAR) marital bond has not been severed.

(2) If Lito is alive, what is the status of Lita's

marriage to Jaime?
Q: When can a missing person who left someone to
administer his property be declared an absentee by the
a) The marriage is valid because Lita's
court? When he has been missing for (2011 BAR)
marriage to Lito was terminated upon
Lito's disappearance for more than
(a) 2 years from the receipt of the last news about
seven (7) years.
him.
b) The marriage is valid. After an absence
(b) 7 years from the receipt of the last news about
of more than 10 years, Lito is already
him.
presumed dead for all purposes.
(c) 10 years from the receipt of the last news about
c) The marriage is void. Lito's mere
him.
absence, however lengthy, is
(d) 5 years from the receipt of the last news about
insufficient to authorize Lita to contract
him.
a subsequent marriage.
d) The marriage is void. If Lito is indeed
A: (d) 5 years from the receipt of the last news about him.
alive, his marriage to Lita was never
dissolved and they can resume their
PRESUMPTIVE DEATH OF ABSENT SPOUSE
marital relations at any time.
UNDER THE FAMILY CODE
(2020-21, 2019, 2015, 2013, 2008 BAR)
A: (c) The marriage is void. Lito's mere absence, however
lengthy, is insufficient to authorize Lita to contract a
Q: Lito was a commercial pilot who flew for Pacific-
subsequent marriage — Lito’s absence did not
Micronesian Air. In 1998, he was the co-pilot of the
automatically grant Lita the right to remarry without
airline's Flight MA916 that mysteriously disappeared
securing a declaration of presumptive death.
two hours after take-off from Agana, Guam, presumably
over the Pacific Ocean. No trace of the plane and its 105
Q: A wife was able to validly obtain a judicial
passengers and crew was ever found despite diligent
declaration of her husband's presumptive death after
search; Lito himself was never heard of again. Lito left
he had disappeared for 10 years. She then remarried in
behind his wife, Lita, and their two (2) children. In
accordance with law. To her surprise, a few years after
2008, Lita met and and married Jaime. They now have a
her remarriage, her first husband reappeared. Does the
child of their own. While on a tour with her former high
first husband's reappearance automatically, without
school classmates in a remote province of China in
need of any further act, terminate the second marriage?
2010, Lita was surprised to see Lito or somebody who
Explain briefly. (2020-21 BAR)
looked exactly like him, but she was sure it was Lito
because of the extreme surprise that registered in his
A: NO, the mere reappearance of the first husband shall not
face when he also saw her. Shocked, she immediately
automatically terminate the second marriage contracted by
fled to her hotel and post-haste returned to the country
the wife. The law provides that the subsequent marriage is
the next day. Lita now comes to you for legal advice. She
automatically terminated by the recording of the affidavit of
asks you the following questions: (2013 BAR)
reappearance of the absent spouse in the civil registry of the
residence of the parties to the subsequent marriage at the
(1) If Lito is alive, what is the status of his marriage
instance of any interested person. (Art. 42, FC) Hence, the
to Lita?
first husband's reappearance will not suffice to terminate
the second marriage. Also, the Court in SSS v. Vda. De Bailon
a) The marriage subsists because the
(G.R. No. 165545, 24 Mar. 2006) ruled that if the absentee
marital bond has not been terminated
spouse reappears, but no step is taken to terminate the
by death
subsequent marriage, either by affidavit or court action,
b) The marriage was terminated when
such absentee's mere reappearance, even if made known to
Lita married Jaime.
the spouses in the subsequent marriage will not terminate
c) The marriage subsists because Lita's
such marriage. (Bar Q&A by Paguirigan, 2022)
marriage to Jaime is void.
d) The marriage is terminated because
Q: H and W were married in 1990. H, being a member of
Lito is presumed dead after his plane
the Armed Forces of the Philippines (AFP), was
has been missing for more than four (4)
deployed to a rebel-infested area in 1992. Since then, W
years.
has not heard from her husband, H. One day, the AFP
e) The marriage can be formally declared
informed W that H had been declared missing since
terminated if Lito would not resurface.
1995. In consequence, W diligently pursued all

9 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
available means to ascertain her husband's
whereabouts, but to no avail. Firmly believing that H
had already died, W filed a claim before the AFP in 2008
for the death benefits of the missing serviceman.
However, the AFP, despite being cognizant of H's status,
would not act on the claim, contending that H could not
be presumed dead unless a judicial declaration to this
effect is issued by the proper court.
In what instance/s is a judicial declaration of
presumptive death necessary? In this case, is the
contention of the AFP correct? Explain. (2019 BAR)
A: Judicial declaration of presumptive death is only used for
the purpose of contracting a subsequent marriage. Art. 41,
FC provides that for the purpose of contracting a
subsequent marriage contracted by a person who had a
well-founded belief that his/her prior spouse who had been
absent for four (4) consecutive years was already dead, the
spouse present must institute a summary proceeding for
the declaration of presumptive death of the absentee. The
contention of the AFP is incorrect because the Court has
declared that the AFP can decide claims of death benefits of
a missing soldier without requiring the claimant to first
produce a court declaration of the presumptive death of
such soldier and the claimant need only present any
“evidence” which shows that the concerned soldier had
been missing for such number of years and/or under the
circumstances prescribed under Arts. 390 and 391, NCC.
Art. 391, NCC provides that a person in the armed forces
who has taken part in war and has been missing for four (4)
years shall be presumed dead for all purposes. Here, W
informed the AFP that her husband had been declared
missing since 1995, 23 years before the filing of her claim in
2018. There is, thus, no need for a judicial declaration of
presumptive death before the AFP can act on the claim of W.
Q: Mrs. L was married to a ship captain who worked for
an international maritime vessel. For her and her
family's support, she would claim monthly allotments
from her husband's company. One day, while en route
from Hong Kong to Manila, the vessel manned by
Captain L encountered a severe typhoon at sea. The
captain was able to send radio messages of distress to
the head office until all communications were lost. In
the weeks that followed, the search operations yielded
debris of the lost ship but the bodies of the crew and the
passengers were not recovered. The insurance
company thereafter paid out the death benefits to all
the heirs of the passengers and crew. Mrs. L filed a
complaint demanding that her monthly allotments
continue for the next 4 years until her husband may be
legally presumed dead because of his absence.
If you were the magistrate would how you rule? (2015
BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: I would rule against Mrs. L. There is no merit in her
contention that the monthly allotments to her should
continue despite the presumptive death of the husband. In
case of disappearance where there is danger of death, the
person shall be presumed to have died at the beginning of
the four (4) year period although his succession will be
opened only at the end of the 4-year period. (Art. 391, NCC)
Since the husband of Mrs. L is presumed to have died at
about the time of disappearance, he is no longer entitled to
receive his salary from the day the presumption of death
arises.
Q: Ana Rivera had a husband, a Filipino citizen like her,
who was among the passengers on board a commercial
jet plane which crashed in the Atlantic Ocean ten (10)
years earlier and had never been heard of ever since.
Believing that her husband had died, Ana married Adolf
Cruz Staedtler, a divorced German national born of a
German father and a Filipino mother residing in
Stuttgart. To avoid being required to submit the
required certificate of capacity to marry from the
German Embassy in Manila, Adolf stated in the
application for marriage license that he was a Filipino
citizen. With the marriage license stating that Adolf was
a Filipino, the couple got married in a ceremony
officiated by the Parish Priest of Calamba, Laguna in a
beach in Nasugbu, Batangas, as the local parish priest
refused to solemnize marriages except in his church. Is
the marriage valid? Explain fully. (2008 BAR)
A: The issue hinges on whether or not the missing husband
was dead or alive at the time of the second marriage.
If the missing husband was in fact dead at the time the
second marriage was celebrated, the second marriage was
valid. Actual death of a spouse dissolves the marriage ipso
facto whether the surviving spouse had knowledge of such
fact. A declaration of presumptive death even if obtained
will not make the marriage voidable because presumptive
death will not prevail over the fact of death.
If the missing husband was in fact alive when the second
marriage was celebrated, the second marriage was void ab
initio because of a prior subsisting marriage. Had Ana
obtained a declaration of presumptive death the second
marriage would have been voidable.
In both cases, the fact that the German misrepresented his
citizenship to avoid having to present his Certificate of Legal
Capacity, or the holding of ceremony outside the church or
beyond the territorial jurisdiction of the solemnizing
officer, are all irregularities which do not affect the validity
of the marriage.
10
 QuAMTO (1987-2022)
Catholic priest. Is the position legally tenable? Explain
II. MARRIAGE briefly. (2020-21 BAR)

A: NO, the position of the couple is not legally tenable.

Under the Family Code, a marriage may be solemnized
among others by any incumbent member of the judiciary
A. GENERAL PRINCIPLES within the court’s jurisdiction. (Art. 7, FC) It must be
(2016, 2014, 2009, 2008, 1996, 1995, 1994 BAR) mentioned that the authority of a Supreme Court Justice to
solemnize marriages is all over the Philippines. Although
the law provides that the marriage shall be solemnized
1. ESSENTIAL REQUISITES publicly in the chambers of the judge or in open court, or in
(2016, 2014, 2009, 2008, 1996, 1995, 1994 BAR) the church, chapel or temple and not elsewhere, (Art. 8, FC)
it is submitted that the solemnization of the marriage by a
member of the judiciary inside the Roman Catholic church
Q: In December 2000, Michael and Anna, after obtaining
shall not affect the validity of the marriage because the
a valid marriage license, went to the Office of the Mayor
venue of the celebration of the marriage is neither an
of Urbano, Bulacan, to get married. The Mayor was not
essential nor a formal requisite of marriage. (Bar Q&A by
there, but the Mayor’s secretary asked Michael and
Paguirigan, 2022)
Anna and their witnesses to fill up and sign the required
marriage contract forms. The secretary then told them
Q: What is the status of the following marriages and
to wait and went out to look for the Mayor who was
why? (1999 BAR)
attending a wedding in a neighboring municipality.
When the secretary caught up with the Mayor at the
(a) A marriage between two 19-year-olds without
wedding reception, she showed him the marriage
parental consent.
contract forms and told him that the couple and their
witnesses were waiting in his office. The Mayor
A: VOIDABLE. The consent of the parties to the marriage
forthwith signed all the copies of the marriage contract,
was defective. Being below 21 years old, the consent of the
gave them to the secretary who returned to the Mayor’s
parties is not full without the consent of their parents. The
office. She then gave copies of the marriage contract to
consent of the parents of the parties to the marriage is
the parties and told Michael and Anna that they were
indispensable for its validity. (Art. 16, FC)
already married. Thereafter, the couple lived together
as husband and wife, and had three (3) sons. (2009
(b) A marriage between two 21-year-olds without
BAR)
parental advice.
(a) Is the marriage of Michael and Anna valid,
A: VALID. Between 21-year-olds, the marriage is valid
voidable, or void? Explain your answer.
despite the absence of parental advice, because such
absence is merely an irregularity affecting a formal
A: The marriage is void because of the absence of an
requisite i.e., the marriage license and does not affect the
essential and formal requisite, namely consent of the
validity of the marriage itself. This is without prejudice to
parties freely given in the presence of the solemnizing
the civil, criminal, or administrative liability of the party
officer and a marriage ceremony. (Art. 2, FC)
responsible therefor. (Art. 4(2), FC)
(b) What is the status of the three (3) children of
(c) A marriage between two Filipino first cousins in
Michael and Anna? Explain your answer.
Spain where such marriage is valid.
A: The children are illegitimate, having been born outside a
A: VOID. By reason of public policy, the marriage between
valid marriage. (Art. 165, FC)
Filipino first cousins is void (Art. 38(1), FC), and the fact that
it is considered a valid marriage in a foreign country in this
2. FORMAL REQUISITES case, Spain— does not validate it, being an exception to the
(2020-21, 2016, 2014, 2011, 2008, 2002, 1999, 1996, general rule in Art. 26 of said Code which accords validity to
1995 BAR) all marriage solemnized outside the Philippines and valid
there as such.
Q: Two college sweethearts were married inside a
Roman Catholic church in the Philippines with a (d) A marriage between two Filipinos in Hongkong
Supreme Court Justice serving as solemnizing officer. A before a notary public.
few years following the ceremony, one of the two (2)
filed an action for the declaration of nullity of marriage A: IT DEPENDS. Otherwise, the marriage that is invalid in
on the ground that the marriage was void ab initio Hongkong will be invalid in the Philippines.
because it was solemnized inside a Roman Catholic
church by a Supreme Court Justice, and not by a Roman

11 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
(e) A marriage solemnized by a town mayor three
towns away from his jurisdiction.
A: VALID. It is jurisprudential that a marriage solemnized
by a town mayor outside of his jurisdiction is a mere
irregularity and will not invalidate the marriage. Hence, the
marriage solemnized by a town mayor three towns away
from his jurisdiction is a valid marriage.
Q: On Valentine's Day 1996, Ellas and Fely, both single
and 25 years of age, went to the city hall where they
sought out a fixer to help them obtain a quickie
marriage. For a fee, the fixer produced an ante-dated
marriage license for them, issued by the Civil Registrar
of a small remote municipality. He then brought them
to a licensed minister in a restaurant behind the city
hall, and the latter solemnized their marriage right
there and then. (2008, 1996 BAR)
(a) Is their marriage valid, void or voidable?
Explain.
A: The marriage is valid. The irregularity in the issuance of
a valid license does not adversely affect the validity of the
marriage. The marriage license is valid because it was in fact
issued by a Civil Registrar. (Arts. 3 and 4, FC)
(b) Would your answer be the same if it should turn
out that the marriage license was spurious?
Explain.
A: NO, the answer would not be the same. The marriage
would be void because of the absence of a formal requisite.
In such a case, there was actually no valid marriage license.
Q: Isidro and Irma, Filipinos, both 18 years of age, were
passengers of Flight No. 317 of Oriental Airlines. The
plane they boarded was of Philippine registry. While en
route from Manila to Greece some passengers hijacked
the plane, held the chief pilot hostage at the cockpit and
ordered him to fly instead to Libya. During the hijacking
Isidro suffered a heart attack and was on the verge of
death. Since Irma was already eight months pregnant
by Isidro, she pleaded to the hijackers to allow the
assistant pilot to solemnize her marriage with Isidro.
Soon after the marriage, Isidro expired. As the plane
landed in Libya Irma gave birth. However, the baby died
a few minutes after complete delivery. Back in the
Philippines Irma immediately filed a claim for
inheritance. The parents of Isidro opposed her claim
contending that the marriage between her and Isidro
was void ab initio on the following grounds:
Resolve each of the contentions (a to d) raised by the
parents of Isidro. Discuss fully. (1995 BAR)
(a) They had not given their consent to the
marriage of their son;
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: The fact that the parents of Isidro and of Irma did not give
their consent to the marriage did not make the marriage
void ab initio. The marriage is merely voidable under Art 45,
FC.
(b) There was no marriage license;
A: Absence of marriage license did not make the marriage
void ab initio. Since the marriage was solemnized in articulo
mortis, it was exempt from the license requirement under
Art. 31, FC.
(c) The solemnizing officer had no authority to
perform the marriage; and
A: On the assumption that the assistant pilot was acting for
and in behalf of the airplane chief who was under disability,
and by reason of the extraordinary and exceptional
circumstances of the case, the marriage was solemnized by
an authorized officer under Arts. 7(3) and 31, FC.
(d) The solemnizing officer did not file an affidavit
of marriage with the proper civil registrar.
A: Failure of the solemnizing officer to file the affidavit of
marriage did not affect the validity of the marriage. It is
merely an irregularity which may subject the solemnizing
officer to sanctions. (Art. 4(2), FC)
Q:
(a) The complete publication of the Family Code
was made on 04 Aug. 1987. On 04 Sept. 1987,
Junior Cruz and Gemma Reyes were married
before a municipal mayor. Was the marriage
valid? (1994 BAR)
A: YES, the marriage is valid. The Family Code took effect on
03 Aug. 1988. At the time of the marriage on 04 Sept. 1987,
municipal mayors were empowered to solemnize
marriages under the Civil Code of 1950.
(b) Suppose the couple got married on 01 Sept.
1994 at the Manila Hotel before the Philippine
Consul General to Hongkong, who was on
vacation in Manila. The couple executed an
affidavit consenting to the celebration of the
marriage at the Manila Hotel. Is the marriage
valid? (1994 BAR)
A: NO, the marriage is not valid. Consuls and vice-consuls
are empowered to solemnize marriages between Philippine
citizens abroad in the consular office of the foreign country
to which they were assigned and have no power to
solemnize marriage on Philippine soil. (Art 7(5), FC, in
relation to Art. 10, FC)
12
 QuAMTO (1987-2022)
ALTERNATIVE ANSWER:
A Philippine consul is authorized by law to solemnize
marriage abroad between Filipino citizens. (Ibid.) He has no
authority to solemnize a marriage in the Philippines.
Consequently, the marriage in question is void, unless
either or both contracting parties believed in good faith that
the consul general had authority to solemnize their
marriage in which case the marriage is valid.
EXEMPTION FROM LICENSE REQUIREMENT
(2008, 2002 BAR)
Q: Roderick and Faye were high school sweethearts.
When Roderick was 18 and Faye was 16 years old, they
started to live together as husband and wife without the
benefit of marriage. When Faye reached 18 years of age,
her parents forcibly took her back and arranged for her
marriage to Brad. Although Faye lived with Brad after
the marriage, Roderick continued to regularly visit
Faye while Brad was away at work. During their
marriage, Faye gave birth to a baby girl, Laica. When
Faye was 25 years old, Brad discovered her continued
liaison with Roderick and in one of their heated
arguments, Faye shot Brad to death. She lost no time in
marrying her true love Roderick, without a marriage
license, claiming that they have been continuously
cohabiting for more than five (5) years. Was the
marriage of Roderick and Faye valid? (2008, 2002 BAR)
A: NO. The marriage of Roderick and Faye is not valid. Art.
4, FC provides that the absence of any of the essential or
formal requisites renders the marriage void ab initio.
However, no license shall be necessary for the marriage of a
man and a woman who have lived together as husband and
wife for at least five (5) years and without any legal
impediment to marry each other. In Republic v. Dayot (G.R.
No. 175581, 28 Mar. 2008), reiterating the doctrine in Niñal
v. Bayadog (G.R. No. 133778, 14 Mar. 2000), this five-year
period is characterized by exclusivity and continuity. In the
present case, the marriage of Roderick and Faye cannot be
considered as a marriage of exceptional character, because
there were two (2) legal impediments during their
cohabitation: 1) minority on the part of Faye, during the
first two years of cohabitation; and 2) lack of legal capacity,
since Faye married Brad at the age of 18. Accordingly, the
required five-year cohabitation period was not met for not
being continuous and exclusive. Thus, the absence of a
marriage license made the marriage of Faye and Roderick
void ab initio.
13
Q: On 01 May 1978, Facundo married Petra, by whom
he had a son Sotero. Petra died on 01 July 1996, while
Facundo died on 01 Jan. 2002. Before his demise,
Facundo had married, on 01 July 2002, Quercia. Having
lived together as husband and wife since 01 July 1990,
Facundo and Quercia did not secure a marriage license
but executed the requisite affidavit for the purpose. To
ensure that his inheritance rights are not adversely
affected by his father’s second marriage, Sotero now
brings a suit to seek a declaration of the nullity of the
marriage of Facundo and Quercia, grounded on the
absence of a valid marriage license. Quercia contends
that there was no need for a marriage license in view
for her having lived continuously with Facundo for five
years before their marriage and that Sotero has no legal
personality to seek a declaration of nullity of the
marriage since Facundo is now deceased. (2002 BAR)
(a) Is the marriage of Facundo and Quercia valid,
despite the absence of a marriage license?
Explain.
A: YES, the marriage with Quercia is valid. The exemption
from the requirement of a marriage license under Art. 34,
FC requires that the man and woman must have lived
together as husband and wife for at least five (5) years and
without any legal impediment to marry each other during
those five (5) years. Although the cohabitation of Facundo
and Quercia for six (6) years from 01 July 1990 to 01 July
1996 when Petra died was one with a legal impediment, the
cohabitation thereafter until the marriage on 01 July 2002
was free from any legal impediment since Facundo’s
marriage with Petra has already been extinguished due to
the latter’s death. The cohabitation of Facundo and Quercia
from the time of death of Petra up to the time of their
marriage on 01 July 2002 met the five-year cohabitation
requirement therefore making their marriage despite the
lack of a marriage license valid.
(b) Does Sotero have the personality to seek the
declaration of nullity of the marriage, especially
now that Facundo is already deceased? Explain.
A: YES, a void marriage may be questioned by any
interested party in any proceeding where the resolution of
the issue is material. Being a compulsory heir, Soterro has
the personality to question the validity of the marriage of
Facundo and Quercia. Otherwise, his participation in the
estate on Facundo would be affected. (Ninãl v. Bayadog, G.R.
No. 133778, 14 Mar. 2000)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: YES, the legal effects of the divorce decree may be
B. MIXED MARRIAGES AND FOREIGN DIVORCE recognized in the Philippines, and consequently, capacitate
(2022, 2020-21, 2019, 2016, 2014, 2012, 2010, 2009, F to remarry.
2006, 2005, 2004, 2003, 2002, 1999, 1997, 1996, 1992
BAR) In the landmark case of Republic v. Manalo (G.R. No. 221029,
24 Apr. 2018) the Supreme Court held that under Art. 26(2),
FC a Filipino citizen has the capacity to remarry under
Philippine law after initiating a divorce proceeding abroad
Q: Eka, a Filipina, and Du-guil, a Korean, married in the
and obtaining a favorable judgment against his or her alien
Philippines. Thereafter, they moved to Seoul, South
spouse who is capacitated to remarry. Here, F initiated a
Korea. While there, Du-guil began to ignore Eka. He was
divorce petition in Japan and obtained a favorable judgment
always out with his friends and usually came home
which capacitated her Japanese husband to remarry.
drunk. When Eka could not take their marital situation
Applying Art. 26(2), FC as interpreted, the legal effects of
anymore, she asked for a divorce. Du-gull agreed on the
the divorce obtained by F may be recognized in the
condition that Eka would be the one to file for divorce,
Philippines which may capacitate F to remarry here.
and that the ground should be "no fault", meaning,
neither of them is at fault or neither would be accused
Q: Romeo and Juliet, both Filipinos, got married. After a
of any wrongdoing. After the divorce, Eka went back to
few years, Juliet got word from her mother that she can
the Philippines and filed a case to have the judgment of
go to the United States for naturalization. Juliet
divorce recognized. The RTC denied Eka's petition
promised she will be back the moment she becomes an
because she alone filed for divorce, in violation of Art.
American. After some time, Romeo learned from a
26(2) of the Family Code. According to the RTC, Art. 26
friend that Juliet already became a U.S. citizen and even
requires that either the foreign spouse alone initiates
divorced him to marry a wealthy American
the filing of the divorce or, at the very least, Eka and Du-
businessman. Romeo filed a petition before the
guil should have filed for divorce jointly.
Regional Trial Court praying that an order be issued
authorizing him to remarry pursuant to Art. 26, FC.
Is the RTC correct? Explain briefly. (2022 BAR)
Decide the petition with reasons. (2016 BAR)

A: NO, the RTC is not correct. As ruled by the Court in

A: If the time of Juliet’s acquisition of U.S. citizenship
Republic v. Manalo (G.R. No. 221029, 24 Apr. 2018), it is
preceded the time when she obtained the divorce decree,
irrelevant if the foreign or the Filipino spouse initiated the
then the divorce decree can be given effect in the
foreign divorce proceeding. Once a divorce decree is issued,
Philippines, and consequently, Romeo will be capacitated to
the foreign spouse is deemed to have “obtained” a divorce
remarry under Philippine law. On the other hand, if Juliet
which capacitates him or her to remarry.
obtained the divorce decree before she acquired U.S.
citizenship, then the foreign divorce decree cannot be
Further in Abel v. Rule, (G.R. No. 234457, 12 May 2021)
recognized by Philippine courts.
reiterating Galapon v. Republic (G.R. No. 243722, 22 Jan.
2020), the Court clarified that Art. 26 of the Family applies
Art. 26(2), FC provides that where a marriage between a
to mixed marriages where the divorce decree is:
Filipino citizen and a foreigner is validly celebrated and a
1. obtained by the foreign spouse;
divorce is thereafter validly obtained abroad by the alien
2. obtained jointly by the Filipino and foreign spouse;
spouse capacitating him or her to remarry, the Filipino
and
spouse shall have capacity to remarry under Philippine law.
3. obtained solely by the Filipino spouse.
In Republic v. Orbecido (G.R. No. 154380, 05 Oct. 2005), the
Supreme Court ruled that Art. 26(2), FC should be
Thus, the RTC committed an error in denying the petition.
interpreted to include cases involving parties who, at the
(Central Bar Q&A by Paguirigan, 2023)
time of the celebration of the marriage were Filipino
citizens, but later on, one of them becomes naturalized as a
Q: F, a Filipina, married J, a Japanese, in the Philippines.
foreign citizen and obtains a divorce decree. The reckoning
After three (3) years, they had a falling out and thus,
point is not their citizenship at the time of celebration of
separated. Soon after, F initiated a divorce petition in
marriage, but their citizenship at the time the divorce
Japan which was not opposed by J because under
decree is obtained abroad by the alien spouse capacitating
Japanese law, a grant of divorce will capacitate him to
him/her to remarry.
remarry. F's divorce petition was then granted by the
Japanese court with finality. May the legal effects of the
NOTE: In the case of Republic v. Manalo (G.R. No. 221029, 24
divorce decree be recognized in the Philippines, and
Apr. 2018), the Court held that Art. 26(2), FC speaks of “a
consequently, capacitate F to remarry here? Explain.
divorce x x x validly obtained abroad by the alien spouse
(2019 BAR)
capacitating him or her to remarry." Based on a clear and
plain reading of the provision, it only requires that there be
a divorce validly obtained abroad. The letter of the law does
not demand that the alien spouse should be the one who

U N I V E R S IT Y O F S A N T O T O M A S 14
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
initiated the proceeding wherein the divorce decree was
granted. It does not distinguish whether the Filipino spouse
is the petitioner or the respondent in the foreign divorce
proceeding.
The purpose of Art. 26(2), FC is to avoid the absurd situation
where the Filipino spouse remains married to the alien
spouse who, after a foreign divorce decree that is effective
in the country where it was rendered, is no longer married
to the Filipino spouse.
Q: Ted, married to Annie, went to Canada to work. Five
(5) years later, Ted became a naturalized Canadian
citizen. He returned to the Philippines to convince
Annie to settle in Canada. Unfortunately, Ted
discovered that Annie and his friend Louie were having
an affair. Deeply hurt, Ted returned to Canada and filed
a petition for divorce which was granted. In December
2013, Ted decided to marry his childhood friend
Corazon in the Philippines. In preparation for the
wedding, Ted went to the Local Civil Registry of Quezon
City where his marriage contract with Annie was
registered. He asked the Civil Register to annotate the
decree of divorce on his marriage contract with Annie.
However, he was advised by the National Statistics
Office (NSO) to file a petition for judicial recognition of
the decree of divorce in the Philippines.
Is it necessary for Ted to file a petition for judicial
recognition of the decree of divorce he obtained in
Canada before he can contract a second marriage in the
Philippines? (2014 BAR)
A: YES, a divorce decree even if validly obtained abroad
cannot have effect in the Philippines unless it is judicially
recognized through an appropriate petition filed before
Philippine courts. The foreigner must file a petition under
Rule 108, ROC and prove therein the fact of divorce by
presenting an official copy attested by the officer having
custody of the original. He must also prove that the court
which issued the divorce has jurisdiction to issue it and the
law of the foreign country on divorce. (Corpuz v. Sto. Tomas,
G.R. No. 186571, 11 Aug. 2010)
Q: Cipriano and Lady Miros married each other. Lady
Miros then left for the US and there, she obtained
American citizenship. Cipriano later learned all about
this including the fact that Lady Miros has divorced him
in America and that she had remarried there. He then
filed a petition for authority to remarry, invoking Art.
26(2), FC. Is Cipriano capacitated to re-marry by virtue
of the divorce decree obtained by his Filipino spouse
who was later naturalized as an American citizen?
Explain. (2012 BAR)
A: YES, he is capacitated to re-marry. While the Art. 26(2),
FC is applicable only to a Filipino who married a foreigner
at the time of the marriage, the Supreme Court ruled in the
case of Republic v. Orbecido (GR. No. 154380, 05 Oct. 2005)
that the said provision equally applies to a Filipino who
15
married another Filipino, at the time of the marriage, but
who was already a foreigner when the divorce was
obtained.
Q: True or False. Under Art. 26, FC when a foreign
spouse divorces his/her Filipino spouse, the latter may
re-marry by proving only that the foreign spouse has
obtained a divorce against her or him abroad. (2010
BAR)
A: FALSE. In Garcia v. Recio (G.R. No. 138322, 02 Oct. 2001),
the SC held that for a Filipino spouse to have capacity to
contract a subsequent marriage, it must also be proven that
the foreign divorce obtained by the foreigner spouse gives
such foreigner spouse capacity to remarry.
Q: Harry married Wilma, a very wealthy woman. Barely
five (5) years into the marriage, Wilma fell in love with
Joseph. Thus, Wilma went to a small country in Europe,
became a naturalized citizen of that country, divorced
Harry, and married Joseph. A year thereafter, Wilma
and Joseph returned and established permanent
residence in the Philippines. (2009, 1999, 1996 BAR)
(a) Is the divorce obtained by Wilma from Harry
recognized in the Philippines? Explain your
answer.
A: YES, the divorce obtained by Wilma is recognized as valid
in the Philippines. At the time she got the divorce, she was
already a foreign national having been naturalized as a
citizen of that “small country in Europe.” Based on
precedents established by the Supreme Court (Bayot v.
Court of Appeals, G.R. No. 155635, 07 Nov. 2008), divorce
obtained by a foreigner is recognized in the Philippines if
validly obtained in accordance with his or her national law.
(See also ruling in Republic v. Manalo, supra)
(b) If Harry hires you as his lawyer, what legal
recourse would you advise him to take? Why?
A: I will advise Harry to:
1. Dissolve and liquidate his property relations with
Wilma; and
2. If he will remarry, file a petition for the
recognition and enforcement of the foreign
judgment of divorce. (Rule 39, ROC)
(c) Harry tells you that he has fallen in love with
another woman, Elizabeth, and wants to marry
her because, after all, Wilma is already married
to Joseph. Can Harry legally marry Elizabeth?
Explain.
A: YES, he can validly marry Elizabeth, applying the
doctrine laid down by the Supreme Court in Republic v.
Orbecido (G.R. No. 154380, 05 Oct. 2005). Under Art. 26(2),
FC for the Filipino spouse to have capacity to remarry, the
law expressly requires the spouse who obtained the divorce
to be a foreigner at the time of the marriage. Applying this
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
requirement to the case of Harry, it would seem that he is
not given the capacity to remarry. This is because Wilma
was a Filipino at the time of her marriage to Harry.
In Republic v. Orbecido (G.R. No. 154380, 05 Oct. 2005),
however, the Supreme Court ruled that a Filipino spouse is
given the capacity to remarry even though the spouse who
obtained the divorce was a Filipino at the time of the
marriage, if the latter was already a foreigner when the
divorce was obtained abroad. According to the Court, to rule
otherwise will violate the equal protection clause of the
Constitution.
NOTE: In Republic v. Manalo (G.R. No. 221029, 24 Apr. 2018),
the Supreme Court held that whether the Filipino spouse
initiated the foreign divorce or not, a favorable decree
dissolving the marriage bond and capacitating his or her
alien spouse to remarry will have the same result: the
Filipino spouse will effectively be without a husband or
wife.
Q: Marvin, a Filipino, and Shelley, an American, both
residents of California, decided to get married in their
local parish. Two (2) years after their marriage, Shelley
obtained a divorce in California. While in Boracay,
Marvin met Manel, a Filipina, who was vacationing
there. Marvin fell in love with her. After a brief
courtship and complying with all the requirements,
they got married in Hongkong to avoid publicity, it
being Marvin's second marriage. Is his marriage to
Manel valid? Explain. (2006 BAR)
A: YES, the marriage of Marvin and Manel is valid. While
Marvin was previously married to Shelley, the divorce from
Marvin obtained by Shelley in California capacitated Marvin
to contract the subsequent marriage to Manel under Art.
26(2), FC which provides that where a marriage between a
Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have the capacity to remarry under
Philippine law. (See also ruling in Republic v. Manalo, supra)
Q: In 1989, Maris, a Filipino citizen, married her boss
Johnson, an American citizen, in Tokyo in a wedding
ceremony celebrated according to Japanese laws. One
(1) year later, Johnson returned to his native Nevada,
and he validly obtained in that state an absolute divorce
from his wife Maris.
After Maris received the final judgment of divorce, she
married her childhood sweetheart Pedro, also a
Filipino citizen, in a religious ceremony in Cebu City,
celebrated according to the formalities of Philippine
law. Pedro later left for the United States and became
naturalized as an American citizen. Maris followed
Pedro to the United States, and after a serious quarrel,
Maris filed a suit and obtained a divorce decree issued
by the court in the state of Maryland. Maris then
returned to the Philippines and in a civil ceremony
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
celebrated in Cebu City according to the formalities of
Philippine law, she married her former classmate
Vincent likewise a Filipino citizen. (2005, 1992 BAR)
(a) Was the marriage of Maris and Johnson valid
when celebrated? Is their marriage still validly
existing now? Reasons.
A: YES, the marriage of Maris and Johnson was valid when
celebrated because all marriages solemnized outside the
Philippines (Tokyo) in accordance with the laws in force in
the country where they are solemnized (Japan), and valid
there as such, are also valid in the Philippines. Their
marriage no longer validly subsists, because it has been
dissolved by the absolute divorce validly obtained by
Johnson which capacitated Maris to remarry. (Art. 26, FC)
(b) Was the marriage of Maris and Pedro valid
when celebrated? Is their marriage still validly
existing now? Reasons.
A: The marriage of Maris and Pedro was valid when
celebrated because the divorce validly obtained by Johnson
in Manila capacitated Maris to marry Pedro. The marriage
of Maris and Pedro is still validly existing because the
marriage has not been validly dissolved by the Maryland
divorce.
(c) Was the marriage of Maris and Vincent valid
when celebrated? Is their marriage still validly
existing now? Reasons.
A: The marriage of Maris and Vincent is void ab initio
because it is a bigamous marriage contracted by Maris
during the subsistence of her marriage with Pedro. (Arts. 25
and 41, FC) The marriage of Maris and Vincent does not
validly exist because Art. 26, FC does not apply. Pedro was
not a foreigner at the time of his marriage with Maris and
the divorce abroad (in Maryland) was initiated and
obtained not by the alien spouse, but by the Filipino spouse.
Hence, the Maryland divorce did not capacitate Maris to
marry Vincent.
(d) At this point in time, who is the lawful husband
of Maris? Reasons.
A: At this point in time, Pedro is still the lawful husband of
Maris because their valid marriage has not been dissolved
by any valid cause. (Art. 26, FC)
Q: In 1985, Sonny and Lulu, both Filipino citizens, were
married in the Philippines. In 1987, they separated, and
Sonny went to Canada, where he obtained a divorce in
the same year. He then married another Filipina,
Auring, in Canada on 01 Jan. 1988. They had two sons,
James and John. In 1990, after failing to hear from
Sonny, Lulu married Tirso, by whom she had a
daughter, Verna. In 1991, Sonny visited the Philippines
where he succumbed to heart attack. (2005 BAR)
16
 QuAMTO (1987-2022)
(a) Discuss the effect of the divorce obtained by
Sonny and Lulu in Canada.
A: The divorce obtained by Sonny in Canada was not valid
because he and his wife were both Filipino citizens. Divorce
between a Filipino couple is not valid under Philippine law
even though they are living abroad. (Art. 15, NCC)
(b) Explain the status of the marriage between
Sonny and Auring.
A: Since the divorce obtained by Sonny was void, his
marriage to Auring is necessarily void ab initio because of
his subsisting marriage to Lulu. (Art. 41, FC)
Q: PH and LV are HK Chinese. Their parents are now
Filipino citizens who live in Manila. While still students
in MNS State, they got married although they are first
cousins. It appears that both in HK and MNS State first
cousins could marry legally. They plan to reside and set
up business in the Philippines. But they have been
informed, however, that the marriage of first cousins
here is considered void from the beginning by reason of
public policy. They are in a dilemma. They don’t want to
break Philippine Law, much less their marriage vow.
They seek your advice on whether their civil status will
be adversely affected by Philippine domestic law? What
is your advice? (2004 BAR)
A: The civil status of PH and LV will not be adversely
affected by Philippine law because they are nationals of
Hong Kong and not Filipino citizens. Being foreigners, their
status, conditions and legal capacity in the Philippines are
governed by the law of Hong Kong, the country of which
they are citizens. Since their marriage is valid under Hong
Kong law, it shall be valid and respected in the Philippines.
Q: Boni and Anne met while working overseas. They
became sweethearts and got engaged to be married on
New Year’s Eve aboard a cruise ship in the Caribbean.
They took the proper license to marry in New York City,
where there is a Filipino consulate. But as planned the
wedding ceremony was officiated by the captain of the
Norwegian-registered vessel in a private suite among
selected friends. Back in Manila, Anne discovered that
Boni had been married in Bacolod City five (5) years
earlier but divorced in Oslo only last year. His first wife
was also a Filipina but now based in Sweden. Boni
himself is a resident of Norway where he and Anne plan
to live permanently. Anne retains your services to
advise her on whether her marriage to Boni is valid
under Philippine law? Is there anything else she should
do under the circumstances? (2004 BAR)
A: If Boni is still a Filipino citizen, his legal capacity is
governed by Philippine Law. (Art. 15, NCC) Under Philippine
law, his marriage to Anne is void because of a prior existing
marriage which was not dissolved by the divorce decreed in
Oslo. Divorce obtained abroad by Filipino is not recognized.
17
If Boni was no longer a Filipino citizen, the divorce is valid.
Hence, his marriage to Anne is valid if celebrated in
accordance with the law of the place where it was
celebrated. Since the marriage was celebrated aboard a
vessel of Norwegian registry, Norwegian law applies. If the
Ship Captain has authority to solemnize the marriage
aboard his ship, the marriage is valid and shall be
recognized in the Philippines.
As to the second question, if Boni is still a Filipino, Anne can
file an action for declaration of nullity of her marriage to
him.
Q: Gene and Jane, Filipinos, met and got married in
England while both were taking up postgraduate
courses there. A few years after their graduation, they
decided to annul their marriage. Jane filed an action to
annul her marriage to Gene in England on the ground of
the latter’s sterility, a ground for annulment of
marriage in England. The English court decreed the
marriage annulled. Returning to the Philippines, Gene
asked you whether or not he would now be free to
marry his former girlfriend. What would your legal
advice be? (2003 BAR)
A: NO. Gene is not free to marry his former girlfriend. His
marriage to Jane if valid according to the forms and
solemnities of British law, is valid here. (Art. 17(1), NCC)
However, since Gene and Jane are still Filipinos, although
living in England, the dissolution of their marriage is still
governed by Philippine law. (Art. 15, NCC) Since sterility is
not one of the grounds for the annulment of marriage under
Art. 45, FC the annulment of Gene’s marriage to Jane on that
ground is not valid in the Philippines. (Art. 17(1), NCC)
Q: Felipe and Felisa, both Filipino citizens, were
married in Malolos, Bulacan on 01 June 1950. In 1960,
Felipe went to the United States, becoming a US citizen
in 1975. In 1980, he obtained a divorce from Felisa, who
was duly notified of the proceedings. The divorce
decree became final under California law. Coming back
to the Philippines in 1982, Felipe married Segundina, a
Filipino citizen. In 2001, Felipe, then domiciled in Los
Angeles, California, died, leaving one child by Felisa,
and another one by Segundina. He left a will which was
executed in Manila under which he left his estate to
Segundina and his two children and nothing to Felisa.
Segundina files a petition for the probate of Felipe’s
will. Felisa questions the intrinsic validity of the will,
arguing that her marriage to Felipe subsisted despite
the divorce obtained by Felipe because said divorce is
not recognized in the Philippines. For this reason, she
claims that the properties left by Felipe are their
conjugal properties and that Segundina has no
successional rights. (2002 BAR)
(a) Is the divorce secured by Felipe in California
recognizable and valid in the Philippines?
U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
A: The divorce secured by Felipe in California is
recognizable and valid in the Philippines because he was no
longer a Filipino at the time he secured it. Aliens may obtain
divorces abroad which may be recognized in the Philippines
provided that they are valid according to their national law.
(Van Dorn v. Romillo, Jr., G.R. No. L-68470, 08 Oct. 1985; Quita
v. Court of Appeals, G.R. No. 124862, 22 Dec. 1998; Llorente v.
Court of Appeals, G.R. No. 12437, 23 Nov. 2000)
(b) How does it affect Felipe’s marriage to Felisa?
Explain.
A: The divorce decree obtained capacitated both Felipe and
Felisa to remarry. In Corpuz v. Sto. Tomas (G.R. No. 186571,
11 Aug. 2010), the Court held that an action based on Art. 26
(2), FC is not limited to the recognition of the foreign
divorce decree. If the court finds that the decree capacitated
the alien spouse to remarry, the courts can declare that the
Filipino spouse is likewise capacitated to contract another
marriage.
In the same case, the Court also initially clarified that Art. 26
(2), FC applies not only to cases where a foreigner was the
one who procured a divorce of his/her marriage to a
Filipino spouse, but also to instances where, at the time of
the celebration of the marriage, the parties were Filipino
citizens, but later on, one of them acquired foreign
citizenship by naturalization, initiated a divorce
proceeding, and obtained a favorable decree. (Luzviminda
dela Cruz v. Ryoji Moriso, G.R. No. 226013, 02 July 2018)
Q: Ben and Eva were both Filipino citizens at the time of
their marriage in 1967. When their marriage turned
sour, Ben went to a small country in Europe, got himself
naturalized there, and then divorced Eva in accordance
with the law of that country. Later, he returned to the
Philippines with his new wife. Eva now wants to know
what action or actions she can file against Ben. She also
wants to know if she can likewise marry again. What
advice can you give her? (1999 BAR)
A: She may remarry. While a strict interpretation of Art. 26,
FC would capacitate a Filipino spouse to remarry only when
the other spouse was a foreigner at the time of the marriage,
the DOJ has issued an opinion (Opinion 134 s. of 1993) that
the same injustice sought to be cured by Art. 26, FC is
present in the case of spouses who were both Filipino at the
time of the marriage but one became an alien subsequently.
Said injustice is the anomaly of Eva remaining married to
her husband who is no longer married to her. Hence, said
Opinion makes Art. 26, FC applicable to her case and the
divorce obtained abroad by her former Filipino husband
would capacitate her to remarry. To contract a subsequent
marriage, all she needs to do is present to the civil registrar
the decree of divorce when she applies for a marriage
license under Art. 13, FC. (See also ruling in Republic v.
Manalo, supra)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
Q: Juan is a Filipino citizen residing in Tokyo, Japan.
State what laws govern his capacity to contract
marriage in Japan. (1998 BAR)
A: Juan’s capacity to contract marriage is governed by
Philippine law pursuant to Art. 15, NCC, which provides that
our laws relating to, among others, legal capacity of persons
are binding upon citizens of the Philippines even though
living abroad.
Q: In 1977, Mario and Clara, both Filipino citizens, were
married in the Philippines. Three (3) years later, they
went to the United States of America and established
their residence in San Francisco, California. In 1987, the
couple applied for, and were granted, U.S. citizenship.
In 1989, Mari, claiming to have been abandoned by
Clara, was able to secure a decree of divorce in Reno,
Nevada, USA. In 1990, Mario returned to the Philippines
and married Juana who knew well Mario’s past life. Is
the marriage between Mario and Juana valid? (1997
BAR)
A: YES. In relation to Art. 15, NCC, Conflict of Laws provides
that the recognition of an absolute divorce granted in
another State rests on the citizenship of the parties at the
time the divorce was granted. (Paras, Phil. Conflict of Laws,
p. 259) Applied in this case, the divorce decree issued to
Clara and Mario will be recognized as valid here considering
that at the time the foreign decree was granted, both Clara
and Mario are citizens of the USA, a country which
grants/allows absolute divorce. Since the marriage
between Mario and Clara has been validly terminated,
Mario and Juana can freely marry each other.
Q: Flor and Virgilio were married to each other in Roxas
City in 1980. In 1984, Flor was offered a teaching job in
Canada, which she accepted. In 1989, she applied for
and was granted Canadian citizenship. The following
year, she sued for divorce from Virgilio in a Canadian
court. After Virgilio was served with summons, the
Canadian court tried the case and decreed the divorce.
Shortly thereafter, Flor married a Canadian. Can
Virgilio marry again in the Philippines? (1996 BAR)
A: YES. In Republic v. Orbecido (GR. No. 154380, 05 Oct.
2005), the Supreme Court ruled that Art. 26(2), FC should
be interpreted to include cases involving parties who, at the
time of the celebration of the marriage were Filipino
citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree.
The instant case is one where at the time the marriage was
solemnized, the parties were two (2) Filipino citizens, but
later on, the wife, Flor, was naturalized as a Canadian citizen
and subsequently obtained a divorce granting her capacity
to remarry, and indeed remarried a Canadian. Virgilio, the
Filipino spouse, should likewise be allowed to remarry as if
the other party were a foreigner at the time of the
solemnization of the marriage. (See also ruling in Republic v.
Manalo, supra)
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 QuAMTO (1987-2022)
Q: A Japanese national was able to obtain a divorce
decree concerning his marriage with his Filipino wife.
The decree capacitated the Japanese national to
remarry. Can the Filipino wife now avail of Art. 26 of the
Family Code and then remarry? Explain briefly. (2020-
21 BAR)
A: YES, the Filipino wife may avail of Article 26 of the Family
Code after an appropriate petition for the recognition of the
foreign divorce has been granted by the Philippine court. In
a mixed marriage, where a valid divorce is obtained abroad
which capacitates the alien spouse to remarry, the Filipino
spouse shall likewise be capacitated to remarry under
Philippine law. However, a mere grant of divorce by a
foreign tribunal does not automatically give effect to the
divorce until it is recognized before Philippine courts. The
starting point in any recognition of a foreign divorce
judgment is the acknowledgment that our courts do not
take judicial notice of foreign judgments and laws. (Sakai v.
Republic, G.R. No. 224015, 23 July 2018) This means that the
foreign judgment and its authenticity must be proven as
facts under our rules on evidence, together with the alien's
applicable national law. (Central Bar Q&A by Paguirigan,
2023)
C. VOID MARRIAAGES
(2022, 2018, 2017, 2016, 2015, 2014, 2013, 2012,
2011, 2009, 2008, 2007, 2006, 2005, 2002, 1997, 1996,
1993, 1991 BAR)
Q: A petition for declaration of nullity of a void marriage
can only be filed by either the husband or the wife. Do
you agree? Explain your answer. (2012 BAR)
A: YES, I agree. Under the rules promulgated by the
Supreme Court, a direct action for declaration of nullity may
only be filed by any of the spouses.
Q: Maria and Luis, both Filipinos, were married by a
Catholic priest in Lourdes Church, Quezon City in 1976,
Luis was drunk on the day of his wedding. In fact, he
slumped at the altar soon after the ceremony. After
marriage, Luis never had a steady job because he was
drunk most of the time. Finally, he could not get
employed at all because of drunkenness. Hence, it was
Maria who had to earn a living to support herself and
her child begotten with Luis. In 1986, Maria filed a
petition in the church matrimonial court in Quezon City
to annul her marriage with Luis on the ground of
psychological incapacity to comply with his marital
obligation. Her petition was granted by the church
matrimonial court. (1993 BAR)
(a) Can Maria now get married legally to another
man under Philippine laws after her marriage
to Luis was annulled by the church matrimonial
court? Explain.
19
A: NO, Maria cannot validly contract a subsequent marriage
without a court declaration of nullity of the first marriage.
The law does not recognize the church declaration of nullity
of a marriage.
(b) What must Maria do to enable her to get
married lawfully to another man under
Philippine laws?
A: To enable Maria to get married lawfully to another man,
she must obtain a judicial declaration of nullity of the prior
marriage under Art. 36, FC.
N.B.: In Pulido v. People (G.R. No. 220149, July 27, 2021, J.
Hernando), the Supreme Court held that Article 40 of the
Family Code has retroactive application on marriages
contracted prior to the effectivity of the Family Code but
only for the purpose of remarriage, as the parties are not
permitted to judge for themselves the nullity of their
marriage. In other words, in order to remarry, a judicial
declaration of nullity is required for prior marriages
contracted before the effectivity of the Family Code.
Without a judicial declaration of absolute nullity of the first
marriage having been obtained, the second marriage is
rendered void ab initio even though the first marriage is also
considered void ab initio. The only basis for establishing the
validity of the second marriage is the judicial decree of
nullity of the first marriage. However, in a criminal
prosecution for bigamy, the parties may still raise the
defense of a void ab initio marriage even without obtaining
a judicial declaration of absolute nullity if the first marriage
was celebrated before the effectivity of the Family Code.
In this case, Maria's marriage with Luis was celebrated
when the Civil Code was in effect. Hence, she is required to
obtain a judicial decree of absolute nullity of his prior void
ab initio marriage but only for purposes of remarriage.
For guidance, below is the summary of the doctrine
enunciated in Pulido:
1. The parties are not required to obtain a judicial
declaration of absolute nullity of a void ab initio
first and subsequent marriages in order to raise it
as a defense in a bigamy case. The same rule now
applies to all marriages celebrated under the Civil
Code and the Family Code. Article 40 of the Family
Code did not amend Article 349 of the RPC, and
thus, did not deny the accused the right to
collaterally attack the validity of a void ab initio
marriage in the criminal prosecution for bigamy.
2. However, if the first marriage is merely voidable,
the accused cannot interpose an annulment decree
as a defense in the criminal prosecution for bigamy
since the voidable first marriage is considered valid
and subsisting when the second marriage was
contracted. The crime of bigamy, therefore, is
consummated when the second marriage was
celebrated during the subsistence of the voidable
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 CIVIL LAW
first marriage. The same rule applies if the second
marriage is merely considered as voidable.
PSYCHOLOGICAL INCAPACITY
(2022, 2016, 2015, 2014, 2013, 2012, 2006, 1997,
2002 BAR)
Q: Art. 36, FC provides that a marriage contracted by
any party who, at the time of the celebration, was
psychologically incapacitated to comply with the
essential marital obligations of marriage, shall be void.
Choose the spouse listed below who is psychologically
incapacitated. Explain. (2006 BAR)
(A) Nagger
(B) Gay or Lesbian
(C) Congenital sexual pervert
(D) Gambler
(E) Alcoholic
A: (b) Gay or Lesbian. The gay or lesbian is psychologically
incapacitated. Being gay or lesbian is a mental disorder
which prevents the afflicted person from performing the
essential duties of married life. He or she will not be able to
perform his duty of sexual consortium with his or her
spouse due to his or her sexual preference for a person of
the same sex. However, the law requires that the disorder
or state of being gay or lesbian incapacitating such person
must be existing at the time of the celebration of the
marriage.
Q: Under what conditions may drug addiction be a
ground if for a declaration of nullity of marriage (2002,
2002 BAR)
A:
1. The drug addiction must amount to psychological
incapacity to comply with the essential obligations
of marriage;
2. It must be antecedent (existing at the time of
marriage), grave and incurable; and
3. The case must be filed before 03 Aug. 1988.
Because if they got married before 03 Aug. 1998, it
must be filed before 03 Aug. 1998.
Q:
(a) Give a brief definition or explanation of the
term “psychological incapacity” as a ground
for the declaration of nullity of a marriage.
(2002 BAR)
A: Psychological Incapacity is a mental disorder of the most
serious type showing the incapability of one or both
spouses to comply the essential marital obligations of love,
respect, cohabitation, mutual help and support, trust and
commitment. It must be characterized by juridical
antecedence, gravity and incurability and its root causes
must be clinically identified or examined. (Santos v. Court of
Appeals, G.R. No. 112019, 04 Jan. 1995)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
NOTE: In the case of Tan-Andal v. Andal (G.R. No. 196359, 11
May 2021), the Court determined that psychological
incapacity should mean “no less than a mental (not
physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the
parties to the marriage. It must refer to the most serious
cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and
significance to the marriage.”
(b) If existing at the inception of marriage,
would the state of being of unsound mind or
the concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism be
considered indicia of psychological
incapacity? Explain. (2002 BAR)
A: In the case of Santos v. Court of Appeals (G.R. No. 112019,
04 Jan. 1995), the Supreme Court held that being of unsound
mind, drug addiction, habitual alcoholism, lesbianism or
homosexuality may be an indicia of psychological
incapacity, depending on the degree of severity of the
disorder. However, the concealment of drug addiction,
habitual alcoholism, lesbianism or homosexuality is a
ground of annulment of marriage.
(c) If drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur
only during the marriage, would these
constitute grounds for a declaration of
nullity or for legal separation, or would they
render the marriage voidable? (2002 BAR)
A: In accordance with law, if drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only
during the marriage, they:
1. Will not constitute as grounds for declaration of
nullity; (Art. 36, FC)
2. Will constitute as grounds for legal separation; (Art. 55,
FC) and
3. Will not constitute as grounds to render the marriage
voidable. (Arts. 45 and 46, FC)
Q: Leo married Lina and they begot a son. After the birth
of their child, Lina exhibited unusual behavior and
started to neglect her son; she frequently went out with
her friends and gambled in casinos. Lina later had
extra-marital affairs with several men and eventually
abandoned Leo and their son. Leo was able to talk to the
psychiatrist of Lina who told him that Lina suffers from
dementia praecox, a form of psychosis where the
afflicted person is prone to commit homicidal attacks.
Leo was once stabbed by Lina but fortunately he only
suffered minor injuries. Will a Petition for Declaration
of Nullity of Marriage filed with the court prosper?
Explain. (2016 BAR)
20
 QuAMTO (1987-2022)
A: NO, the petition for nullity should be denied.
Psychological incapacity under Article 36 must be
characterized by (a) gravity, (b) juridical antecedence and
(c) incurability. The incapacity must be grave or serious
such that the party would be incapable of carrying out the
ordinary duties required in marriage. It must be rooted in
the history of the party antedating the marriage, although
the overt manifestations may only emerge after the
marriage. It must be incurable or, even if it were otherwise,
the cure would be beyond the means of the party involved.
(Ligarde v. Patalinghug, G.R. No. 168796, 15 Apr. 2010) In
several cases decided by the Supreme Court, a finding of
psychological incapacity must be based on an in-depth
assessment of the parties by the psychologist or expert, for
a conclusive diagnosis of a grave, severe and incurable
presence of psychological incapacity (Ngo Te v. Yu-Te, G.R.
No. 161793, 13 Feb. 2009; Paz v. Paz G.R. No. 166579 18 Feb.
2010) In this case, the there was no mention that the
psychiatrist who examined Lina was ever presented in
court. Rather, it was the husband Leo who gave an account
of what the psychiatrist told him about Lina's condition.
(Central Bar Q&A by Paguirigan, 2023)
Q: Razna and Junsi got married in 2015 and were
blessed with two children, Zarah and Mica. In 2020,
because of the COVID-19 pandemic, the entire family
had to spend 24 hours together every day in their small
house. Razna observed that although Junsi continued to
work from home to support the family, he began to
exhibit paranoia, and constantly kept making sure that
they always washed their hands and rubbed them with
alcohol 10 times before eating. Junsi also always wore a
face mask, face shield and hazmat in the house, except
when he was alone in the room. Junsi began sleeping
separately from Razna and their children. He believed
that other people who wanted to meet him in person
were actively trying to harm him by exposing him to the
virus. In early 2022, Razna filed a petition for
declaration of nullity of her marriage with Junsi on the
ground of psychological incapacity under Art. 36 of the
Family Code, citing his atypical behavior. She presented
the testimony of a doctor, who proved that Junsi was
suffering from psychotic paranoia due to intense stress,
which accounted for his belief in things that are not
real.
Should Razna’s petition be granted? Explain briefly.
(2022 BAR)
A: NO, Razna’s petition should not be granted. Psychological
incapacity has been ruled to be a legal concept and not a
medical concept. (Tan-Andal v. Andal, G.R. No. 196359, 11
May 2021) Here, the fact that Jusni was suffering from
psychotic paranoia does not make him automatically unable
to comply with essential marital obligations. Based on the
facts, despite his atypical behavior, he still continues to
work and support his family. To be considered a ground to
declare the marriage void, the psychological incapacity
must be shown to be a durable or enduring aspect of a
person's personality, called “personality structure,” which
21
manifests itself through clear acts of dysfunctionality that
undermines the family. The spouse's personality structure
must make it impossible for him or her to understand and,
more important, to comply with his or her essential marital
obligations. The supposed behavior of Jusni was stress-
induced and does not form part of his personality structure.
Thus, based on the standards in Tan-Andal, Jusni is not
psychologically incapacitated. (Central Bar Q&A by
Paguirigan, 2023)
Q: Brad and Angelina had a secret marriage before a
pastor whose office is located in Arroceros Street, City
of Manila. They paid money to the pastor who took care
of all the documentation. When Angelina wanted to go
to the U.S., she found out that there was no marriage
license issued to them before their marriage. Since
their marriage was solemnized in 1995 after the
effectivity of the Family Code, Angelina filed a petition
for judicial declaration of nullity on the strength of a
certification by the Civil Registrar of Manila that, after a
diligent and exhaustive search, the alleged marriage
license indicated in the marriage certificate does not
appear in the records and cannot be found. (2016 BAR)
(a) Decide the case and explain.
A: I will grant the petition for judicial declaration of nullity
of Brad and Angelina’s marriage on the ground that there is
a lack of marriage license. Art. 3, FC provides that one of the
formal requisites of marriage is a valid marriage license and
Art. 4 of the same Code states that absence of any of the
essential or formal requisites shall render the marriage void
ab initio. In Abbas v. Abbas (G.R. No. 183896 30 Jan. 2013),
the Supreme Court declared the marriage as void ab initio
because there is proof of lack of record of marriage license.
The certification by the Civil Registrar of Manila that, after
diligent and exhaustive search, the alleged marriage license
indicated in the marriage certificate does not appear in the
records and cannot be found proves that the marriage of
Brad and Angelina was solemnized without the requisite
marriage license and is therefore void ab initio. The absence
of the marriage license was certified by the local civil
registrar who is the official custodian of these documents
and who is in the best position to certify the existence of
these records. Also, there is a presumption of regularity in
the performance of official duty. (Republic v. Court of
Appeals and Castro, G.R. No. 103047, 02 Sept. 1994)
(b) In case the marriage was solemnized in 1980,
before the effectivity of the Family Code (03
Aug. 1988), is it required that a judicial petition
be filed to declare the marriage null and void?
Explain.
A: NO, it is not required that a judicial petition be filed to
declare the marriage null and void when said marriage was
solemnized before the effectivity of the Family Code. As
stated in the cases of People v. Mendoza (G.R. No. L-5877, 28
Sept. 1954) and People v. Aragon (G.R. No. L-10016, 28 Feb.
1957) the old rule is that where a marriage is illegal and void
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from its performance, no judicial is necessary to establish
its invalidity.
ALTERNATIVE ANSWER:
Irrespective of when the marriage took place, other than for
purposes of remarriage, no judicial action is necessary to
declare a marriage absolute nullity. For other purposes,
such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that
matter, the court may pass upon the validity of marriage
even in a suit not directly instituted to question the same so
long as it is essential to the determination of the case. This
is without prejudice to any issue that may arise in the case.
When such need arises, a final judgment of declaration of
nullity is necessary even if the purpose is other than to
remarry. The clause on the basis of a final judgment
declaring such previous marriage void in Art. 40, FC
connotes that such final judgment needs to be obtained only
for purpose of remarriage. (Ablaza v. Republic, G.R. No.
158298, 11 Aug. 2010)
Q: Kardo met Glenda as a young lieutenant and after a
whirlwind courtship, they were married. In the early
part of his military career, Kardo was assigned to
different places all over the country, but Glenda refused
to accompany him as she preferred to live in her
hometown. They did not live together until the 12th
year of their marriage when Kardo had risen up the
ranks and was given his own command. They moved to
living quarters in Fort Gregorio. One day, while Kardo
was away on official business, one of his military aides
caught Glenda having sex with the corporal assigned as
Kardo's driver. The aide immediately reported the
matter to Kardo who rushed home to confront his wife.
Glenda readily admitted the affair and Kardo sent her
away in anger. Kardo would later come to know the true
extent of Glenda's unfaithfulness from his aides, his
household staff, and former neighbors who informed
him that Glenda has had intimate relations with various
men throughout their marriage whenever Kardo was
away on assignment.
Kardo filed a petition for declaration of nullity of
marriage under Art. 36, FC. Based on interviews from
Kardo, his aide, and the housekeeper, a psychologist
testified that Glenda's habitual infidelity was due to her
affliction with Histrionic Personality Disorder, an
illness characterized by excessive emotionalism and
uncontrollable attention-seeking behavior rooted in
Glenda's abandonment as a child by her father. Kardo
himself, his aide, and his housekeeper also testified in
court. The RTC granted the petition, relying on the
liberality espoused by Te v. Te and Azcueta v. Republic.
However, the OSG filed an appeal, arguing that sexual
infidelity was only a ground for legal separation and
that the RTC failed to abide by the guidelines laid down
in the Molina case. How would you decide the appeal?
(2015 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: I will resolve the appeal in favor of the Republic. In the
case of Dedel v. Dedel (G.R. No. 151867, 29 Jan. 2004), the
Supreme Court refused to declare the marriage of the
parties void on the ground of sexual infidelity of the wife
Sharon. In the case mentioned, the wife committed infidelity
with several men up to the extent of siring two illegitimate
children with a foreigner. The Court, however, said that it
was not shown that the sexual infidelity was a product of a
disordered personality and that it was rooted in the history
of the party alleged to be psychologically incapacitated.
Also, the finding of psychological incapacity cannot be
based on the interviews conducted by the clinical
psychologist on the husband or his witnesses and the
person alleged to be psychologically incapacitated must be
personally examined to arrive at such declaration. (Marcos
v. Marcos, G.R. No. 136490, 19 Oct. 2000; Agraviador v.
Agraviador, G.R. No. 170729, 08 Dec. 2010)
NOTE: In the landmark case of Tan Andal v. Andal (G.R. No.
196359, 11 May 2021), the Court categorically abandoned
the second Molina guideline. Psychological incapacity is
neither a mental incapacity nor a personality disorder that
must be proven through expert opinion. Ordinary witnesses
who have been present in the life of the spouses before the
latter contracted marriage may testify on behaviors that
they have consistently observed from the supposedly
incapacitated spouse.
Q: Ariz and Paz were officemates at Perlas ng Silangan
Bank (PSB). They fell in love with each other and had a
civil and church wedding. Meanwhile, Paz rapidly
climbed the corporate ladder of PSB and eventually
became its Vice President, while Ariz remained one of
its bank supervisors, although he was short of 12 units
to finish his Masters of Business Administration (MBA)
degree.
Ariz became envious of the success of his wife. He
started to drink alcohol until he became a drunkard. He
preferred to join his "barkadas"; became a wifebeater;
would hurt his children without any reason; and failed
to contribute to the needs of the family. Despite
rehabilitation and consultation with a psychiatrist, his
ways did not change.
After 19 years of marriage, Paz, a devout Catholic,
decided to have their marriage annulled by the church.
Through the testimony of Paz and a psychiatrist, it was
found that Ariz was a spoiled brat in his youth and was
sometimes involved in brawls. In his teens, he was once
referred to a psychiatrist for treatment due to his
violent tendencies. In due time, the National Appellate
Matrimonial Tribunal (NAMT) annulled the union of
Ariz and Paz due to the failure of Ariz to perform and
fulfill his duties as a husband and as a father to their
children. The NAMT concluded that it is for the best
interest of Paz, Ariz and their children to have the
marriage annulled.
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 QuAMTO (1987-2022)
In view of the NAMT decision, Paz decided to file a
Petition for Declaration of Nullity of Marriage of their
civil wedding before the Regional Trial Court (RTC) of
Makati City using the NAMT decision and the same
evidence adduced in the church annulment
proceedings as basis. If you are the judge, will you grant
the petition? Explain. (2014 BAR)
A: If I were the judge, I will not grant the petition. While the
decision of the church tribunal annulling the marriage of the
parties may be persuasive, it is not however, binding upon
the civil courts. For psychological incapacity to be a ground
for nullity, it must be shown that it was rooted in the history
of the party alleged to be suffering from it, it must be grave,
serious, and incurable such that it renders the person
incapacitated to perform the essential marital obligations
due to causes psychological in nature. In the case presented,
it appears that Ariz fulfilled his marital obligations at the
beginning and it was only after feeling envious about the
success of Paz that he started exhibiting violent tendencies
and refused to comply with marital obligations.
Psychological incapacity is not mere refusal but outright
incapacity to perform marital obligations which does not
appear to be present in the case of Ariz. (Marcos v. Marcos,
G.R. No. 136490- October 19, 2000) (Central Bar Q&A by
Paguirigan, 2023)
Q: You are a Family Court judge and before you is a
Petition for the Declaration of Nullity of Marriage
(under Art. 36, FC) filed by Maria against Neil. Maria
claims that Neil is psychologically incapacitated to
comply with the essential obligations of marriage
because Neil is a drunkard, a womanizer, a gambler,
and a mama's boy—traits that she never knew or saw
when Neil was courting her. Although summoned, Neil
did not answer Maria's petition and never appeared in
court. To support her petition, Maria presented three
witnesses–herself, Dr. Elsie Chan, and Ambrosia. Dr.
Chan testified on the psychological report on Neil that
she prepared. Since Neil never acknowledged nor
responded to her invitation for interviews, her report
is solely based on her interviews with Maria and the
spouses' minor children. Dr. Chan concluded that Neil is
suffering from Narcissistic Personality Disorder, an
ailment that she found to be already present since Neil's
early adulthood and one that is grave and incurable.
Maria testified on the specific instances when she found
Neil drunk, with another woman, or squandering the
family's resources in a casino. Ambrosia, the spouses'
current household help, corroborated Maria's
testimony.
On the basis of the evidence presented, will you grant
the petition? (2013, 2012, 2006, 1996 BAR)
A: NO. The petition should be denied. The psychological
incapacity under Art. 36, FC must be characterized (a)
gravity, (b) juridical antecedence, and (c) incurability. It is
not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is
23
essential that they must be shown to be incapable of doing
so, due to some psychological (not physical) illness.
(Republic v. Court of Appeals and Molina, G.R. No. 108763, 13
Feb. 1997) In this case, the pieces of evidence presented are
not sufficient to conclude that indeed Neil is suffering from
a psychological incapacity (Narcissistic Personality
Disorder) existing already before the marriage, incurable
and serious enough to prevent Neil from performing his
essential marital obligations. Dr. Chan’s report contains
mere conclusions. Being a drunkard, a womanizer, a
gambler and a mama’s boy merely shows Neil’s failure to
perform his marital obligations. In a number of cases, the
Supreme Court did not find the existence of psychological
incapacity in cases where the respondents showed habitual
drunkenness (Republic v. Melgar, G.R. No. 139676, 31 Mar.
2006), blatant display of infidelity and irresponsibility
(Dedel v. Court of Appeals, G.R. No. 151867, 29 Jan. 2004), or
being hooked to gambling and drugs. (Republic v. Tanyag-
San Jose, G.R. No. 168328, 22 Feb. 2007)
NOTE: In the case of Tan-Andal v. Andal (G.R. No. 196359, 11
May 2021), the Court unanimously modified the
interpretation of the requirements of psychological
incapacity as a ground for declaration of nullity of marriage
found in Art. 36, FC.
With respect to gravity, the requirement is retained, not in
the sense that psychological incapacity must be shown to be
a serious or dangerous illness, but that “mild
characterological peculiarities, mood changes, occasional
emotional outbursts” are excluded. The psychological
incapacity cannot be mere “refusal, neglect, or difficulty,
much less ill will.” In other words, it must be shown that the
incapacity is caused by a genuinely serious psychic cause.
With respect to juridical antecedence, difficult to prove as
it may be, it is still required to be proven as it is an explicit
requirement of the law. Art. 36, FC is clear that the
psychological incapacity must be existing “at the time of the
celebration” of the marriage,” even if such incapacity
becomes manifest only after its solemnization. This
distinguishes psychological incapacity from divorce.
With respect to incurability, it is not in the medical, but in
the legal sense; hence, the third Molina guideline is
amended accordingly, which means that the incapacity is so
enduring and persistent with respect to a specific partner
and contemplates a situation where the couple’s respective
personality structures are so incompatible and antagonistic
that the only result of the union would be the inevitable and
irreparable breakdown of the marriage.
Q: The petitioner filed a petition for declaration of
nullity of marriage based allegedly on the psychological
incapacity of the respondent, but the psychologist was
not able to personally examine the respondent and the
psychological report was based only on the narration of
the petitioner. Should the annulment be granted?
Explain. (2012 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: NO. No, the annulment must be denied. In petitions for
declaration of nullity based on Article 36, jurisprudence
instructs that the psychologist must conduct a personal and
independent assessment of the person alleged to be
psychologically incapacitated. In this case, the psychological
report was solely based on petitioner's narration who has
an interest on the positive outcome of the case in his favor
(Marcos v. Marcos, G.R. No. 136490, 19 Oct. 2000) (Central
Bar Q&A by Paguirigan, 2023)
Q: Gemma filed a petition for the declaration of nullity
of her marriage with Arnell on the ground of
psychological incapacity. She alleged that after two (2)
months of their marriage, Arnell showed signs of
disinterest in her, neglected her and went abroad. He
returned to the Philippines after three (3) years but did
not even get in touch with her. Worse, they met several
times in social functions, but he snubbed her. When she
got sick, he did not visit her even if he knew of her
confinement in the hospital. Meanwhile, Arnell met an
accident which disabled him from reporting for work
and earning a living to support himself. Will Gemma's
suit prosper? Explain. (2006 BAR)
A: Gemma’s suit will not prosper. The acts of Arnell
complained about do not by themselves constitute
psychological incapacity. It is not enough to prove the
commission of those acts or the existence of his abnormal
behavior. It must be shown that those acts or that behavior
was manifestation of a serious mental disorder and that it is
the root cause why he was not able to perform the essential
duties of married life. It must also be shown that such
psychological incapacity, as manifested in those acts or that
behavior, was existing at the time of the celebration of the
marriage. In this case, there was no showing that Arnell was
suffering from a manifestation of that disorder, and that
such disorder prevented him from complying with his
duties as a married person.
Tan-Andal v. Andal
G.R. No. 196359, 11 May 2021
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
ABSENCE OF ANY OF THE ESSENTIAL OR FORMAL
REQUISITES OF MARRIAGE
(2011 BAR)
Q: Conrad and Linda, both 20 years old, applied for a
marriage license, making it appear that they were over
25. They married without their parents’ knowledge
before an unsuspecting judge. After the couple has been
in cohabitation for 6 years, Linda’s parents filed an
action to annul the marriage on ground of lack of
parental consent. Will the case prosper? (2011 BAR)
(a) No, since only the couple can question the
validity of their marriage after they became 21
of age; their cohabitation also convalidated the
marriage.
(b) No, since Linda’s parents made no allegations
that earnest efforts have been made to come to
a compromise with Conrad and Linda and
which efforts failed.
(c) Yes, since the marriage is voidable, the couple
being below 21 years of age when they married.
(d) Yes, since Linda’s parents never gave their
consent to the marriage
A: (a) NO, since only the couple can question the validity of
their marriage after they became 21 of age; their
cohabitation also convalidated the marriage.
LACK OF MARRIAGE LICENSE AND NOT EXEMPT FROM
THE MARRIAGE LICENSE REQUIREMENT
(2017, 2008)
Q: State whether the following marital unions are valid,
void, or voidable, and give the corresponding
justifications for your answer:
Marriage of Zoren and Carmina who did not secure a
marriage license prior to their wedding but lived
together as husband and wife for 10 years without any
legal impediment to marry. (2017, 2008 BAR)
A: If Zoren and Carmina lived together as husband and wife
for 10 years prior to their marriage, then the marriage is
valid, despite the absence of the marriage license. An
exception to the rule that a marriage shall be void if
solemnized without license under Art. 35(3) is that
provided for under Art. 34, FC. When a man and a woman
have lived together as husband and wife for at least five (5)
years and without any legal impediment to marry each
other, they may celebrate the marriage without securing a
marriage license.
24
 QuAMTO (1987-2022)
LACK OF AUTHORITY OF THE SOLEMNIZING OFFICER
(2012, 2006 BAR)
Q: Agay, a Filipino citizen and Topacio, an Australian
citizen, got married in the consular office of the
Philippines in Australia. According to the laws of
Australia, a marriage solemnized by a consular official
is valid, provided that such marriage is celebrated in
accordance with the laws of such consular official.
Under Philippine law, what is the status of the marriage
of Agay and Topacio? Choose the best answer. (2012
BAR)
A) Void, because the consular official only has
authority to solemnize marriages between
Filipinos.
B) Valid, because according to the laws of
Australia, such consular official has authority to
celebrate the marriage.
C) Voidable, because there is an irregularity in the
authority of the consular official to solemnize
marriages.
D) Valid, because such marriage is recognized as
valid in the place where it was celebrated.
A: A. (UPLC Suggested Answers)
Q: Gigi and Ric, Catholics, got married when they were
18 years old. Their marriage was solemnized on 02 Aug.
1989 by Ric's uncle, a Baptist Minister, in Calamba,
Laguna. He overlooked the fact that his license to
solemnize marriage expired the month before and that
the parties do not belong to his congregation. After five
(5) years of married life and blessed with two (2)
children, the spouses developed irreconcilable
differences, so they parted ways. While separated, Ric
fell in love with Juliet, a 16-year-old sophomore in a
local college and a Seventh Day Adventist. They decided
to get married with the consent of Juliet's parents. She
presented to him a birth certificate showing she is 18
years old. Ric never doubted her age much less the
authenticity of her birth certificate. They got married in
a Catholic church in Manila. A year after, Juliet gave
birth to twins, Aissa and Aretha. (2006 BAR)
(a) What is the status of the marriage between Gigi
and Ric — valid, voidable or void? Explain.
A: The marriage between Gigi and Ric is void because a
minister has no authority to solemnize a marriage between
contracting parties who were both not members of the
minister’s religious sect. Under the Family Code, a minister
or a priest has authority to solemnize a marriage but only if
one or both contracting parties are members of the religious
sect of the priest or minister. Since neither Ric nor Gigi was
a member of the Baptist Church because both of them were
Catholic, the Baptist Minister did not have authority to
solemnize their marriage.
25
Ric and Gigi cannot claim that they believed in good faith
and that the Baptist Minister had the authority to solemnize
the marriage and invoke Art. 35(2), FC to make the marriage
valid. The provision of the Family Code applies only to a
mistake of fact, and not to a mistake of law. Hence the fact
that the Minister’s license was expired will not affect the
validity of the marriage if Ric or Gigi believed in good faith
that the Minister had a valid license. That would be a
mistake of fact. However, believing that the Minister had
authority to solemnize the marriage even if none of the
contracting parties was a member of the Minister’s religious
sect is a mistake of law. This is because the law expressly
provides that the Minister has authority only if one or both
contracting parties are members of the Minister’s religious
sect. (Art. 7(2), FC) A mistake of law does not excuse from
non-compliance.
(b)What is the status of the marriage between Ric
and Juliet — valid, voidable or void?
A: The marriage between Ric and Juliet is void because Juliet
was below 18 years of age. Under the Family Code, the
requisite age for legal capacity to contract marriage is 18
years old and a marriage by a party who is below 18 years
old is void under all circumstances. Hence, even though
Juliet’s parents have given their consent to the marriage and
even though Ric believed in good faith that she was 18 years
old, the marriage is void. (Art. 35(1), FC)
(c) Suppose Ric himself procured the falsified birth
certificate to persuade Juliet to marry him
despite her minority and assured her that
everything is in order. He did not divulge to her
his prior marriage with Gigi. What action, if any,
can Juliet take against him? Explain.
A: Juliet may file an action to declare her marriage to Ric null
and void on the ground that she was not of marrying age.
She may also file a criminal case against Ric for Bigamy
because he contracted the marriage with her without a
judicial declaration of nullity of his first marriage to Gigi.
She may also file a criminal case for Falsification, Perjury, or
Illegal Marriage as the case may be.
In case the facts and the evidence will warrant, she may also
file a criminal case for Seduction. In all these cases, Juliet
may recover damages.
(d)If you were the counsel for Gigi, what action/s
will you take to enforce and protect her
interests? Explain.
A: As counsel for Gigi, I will file an action for declaration of
nullity of Gigi’s marriage to Ric on the ground of absence of
authority of the Baptist minister to solemnize the marriage
between Ric and Gigi who were both non-members of the
Baptist Church. (Art. 7(2), FC)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
INCENSTOUS MARRIAGE
(2008, 2007 BAR)
Q: TRUE or FALSE. Amor gave birth to Thelma when she
was 15 years old. Thereafter, Amor met David and they
got married when she was 20 years old. David had a son,
Julian, with his ex-girlfriend Sandra. Julian and Thelma
can get married. (2007 BAR)
A: TRUE. Julian and Thelma can get married. Marriage
between stepbrothers and stepsisters are not among the
marriages prohibited under the Family Code.
Q: Despite several relationships with different women,
Andrew remained unmarried. His first relationship
with Brenda produced a daughter, Amy, now 30 years
old. His second, with Carla, produced two (2) sons: Jon
and Ryan. His third, with Elena, bore him no children
although Elena has a daughter, Jane, from a previous
relationship. His last, with Fe, produced no biological
children but they informally adopted without court
proceedings, Sandy's now 13 years old, whom they
consider as their own. Sandy was orphaned as a baby
and was entrusted to them by the midwife who
attended to Sandy's birth. All the children, including
Amy, now live with Andrew in his house. Can Jon and
Jane legally marry? (2008 BAR)
A: YES. Jon and Jane can marry each other; Jon is an
illegitimate child of Andrew while Jane is a child of Elena
from a previous relationship. Thus, their marriage is not one
of the prohibited marriages enumerated under Art. 38, FC.
VOID BY REASON OF PUBLIC POLICY
(2017, 2012, 2008 BAR)
Q: State whether the marital union is valid, void, or
voidable, and give the corresponding justifications for
your answer:
Carlos’ marriage to Dina which took place after Dina
had poisoned her previous husband Edu in order to free
herself from any impediment in order to live with
Carlos. (2017, 2008 BAR)
A: The marriage of Carlos to Dina is void for reasons of
public policy. Art. 38(9), FC provides that marriage between
parties where one, with the intention to marry the other,
killed that other person’s spouse or his or her own spouse
is void from the beginning for reasons of public policy.
Which of the following marriages is void for reasons of
public policy? (2012 BAR)
A) Between brothers and sisters, whether of the
full or half blood.
B) Between step-parents and step children.
C) Between parents-in-law and children-in-law.
D) b and c
A: C. (UPLC Suggested Answers)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
BIGAMOUS OR POLYGAMOUS MARRIAGES
(2017, 2008, 2005, 1993, 1991 BAR)
Q: State whether the following marital unions are valid,
void, or voidable, and give the corresponding
justifications for your answer:
Eli and Fely’s marriage solemnized 7 years after the
disappearance of Chona, Eli’s previous spouse, after the
plane she had boarded crashed in the West Philippine
Sea. (2017, 2008 BAR)
A: The marriage is void under Art. 35(4) in relation to Art.
41, FC. The requisites of a valid marriage under Art. 41, FC
are as follows: 1) the prior spouse had been absent for 4
consecutive years, except when the disappearance is in
danger of death which only requires 2 years; 2) the present
spouse had a well-founded belief that the absent spouse
was already dead; and 3) the spouse present must institute
a summary proceeding for declaration of presumptive
death. There is nothing in the facts that suggest that Eli
instituted a summary proceeding for declaration of
presumptive death of her previous spouse and this cannot
be presumed. Thus, the exception under Art. 35(4), FC is
inapplicable and the subsequent marriage is void.
ALTERNATIVE ANSWER:
If the marriage was celebrated under the NCC, the marriage
would be valid, as no declaration of presumptive death is
necessary under Art. 391 of the said Code.
Q: A and B, both 18 years old, were sweethearts
studying in Manila. On 03 Aug. 1988, while in 1st year
college, they eloped. They stayed in the house of a
mutual friend in town X, where they were able to obtain
a marriage license. On 30 Aug. 1988, their marriage was
solemnized by the town mayor of X in his office.
Thereafter, they returned to Manila and continued to
live separately in their respective boarding houses,
concealing from their parents, who were living in the
province what they had done. In 1992, after graduation
from college, A and B decided to break their relation
and parted ways. Both went home to their respective
towns to live and work. Can either or both of them
contract marriage with another person without
committing bigamy? Explain your answer. (1993 BAR)
A: Either or both of the parties cannot contract marriage in
the Philippines with another person without committing
bigamy, unless there is compliance with the requirements
of Art. 52, FC namely: there must be a judgment of
annulment or absolute nullity of the marriage, partition and
distribution of the properties of the spouses and the
delivery of their children’s presumptive legitimes, which
shall be recorded in the appropriate Civil Registry of
Property, otherwise, the same shall not affect third persons
and the subsequent marriage shall be null and void. (Arts.
52 and 53, FC)
26
 QuAMTO (1987-2022)
SUBSEQUENT MARRIAGES UNDER ART. 53 OF THE FC
(2017, 2008 BAR) D. VOIDABLE MARRIAGES
(2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011,
Q: State whether the following marital unions are valid, 2010, 2009, 2008, 2007, 2002, 1997, 1996, 1995, 1990
void, or voidable, and give the corresponding BAR)
justifications for your answer:

David who married Lina immediately the day after

CONSENT WAS OBTAINED BY FRAUD
obtaining a judicial decree annulling his prior marriage
(2012, 2011, 2002, 1997, 1996 BAR)
to Elisa. (2017, 2008 BAR)

Q: Ricky and Princess were sweethearts. Princess

A: The marriage is valid as there were no facts showing that
became pregnant. Knowing that Ricky is preparing for
David and Lina have properties and children, which would
the examinations, Marforth, a lawyer and cousin of
render the marriage void under Art. 53, FC, in relation to
Princess, threatened Ricky with the filing of a complaint
Art. 52, FC. In addition, David and Lina have no impediment
for immorality in the Supreme Court, thus preventing
to marry.
him from taking examinations unless he marries
Princess. As a consequence of the threat, Ricky married
ALTERNATIVE ANSWER:
Princess. Can the marriage be annulled on the ground
of intimidation under Art. 45 of the FC? Choose the best
If the spouses have properties and children, the marriage is
answer. (2012 BAR)
void under Art. 53, FC, in relation to Art. 52, FC. For a
marriage subsequent to a judgment of annulment of a
A) Yes, because without the threat, Ricky would
previous marriage to be valid, the properties of the spouses
not have married Princess.
must have been partitioned and distributed, the
B) Yes, because the threat to enforce the claim of
presumptive legitimes of children, if any, must have been
Princess vitiates the consent of Ricky in
delivered, and the aforementioned facts must be recorded
contracting the marriage.
in the civil registry and registries of property. The marriage
C) No, because the threat made by Marforth is just
was entered into the day after obtaining a judicial decree of
and legal.
annulment and it would have been impossible for David to
D) No, because Marforth is not a party to the
comply with the requirements in such a short time.
contract of marriage between Princess and
Therefore, the marriage is void.
Ricky.

A: C. (UPLC Suggested Answers)

Q: Rene and Lily got married after a brief courtship.

After one month, Lily discovered that while Rene
presented himself as a macho man he was actually gay.
He would not go to bed with her. He kept obscene
magazines of nude men and always sought the company
of handsome boys. What legal remedy does Lily have?
(2011 BAR)

A) She can file an action for annulment of marriage

on ground of fraud.
B) She can seek a declaration of nullity of the
marriage based on Rene’s psychological
incapacity.
C) She can go abroad and file for divorce in a
country that can grant it.
D) She has none since she had the opportunity to
examine the goods and freely entered into the
marriage.

A: A. (UPLC Suggested Answers)

Q: Under what conditions may drug addiction be a

ground, if for an annulment of the marriage contract
(2002, 1997 BAR)

27 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: Annulment of the marriage contract:
1. The drug addiction must be concealed;
2. It must exist at the time of marriage;
3. There should be no cohabitation with full
knowledge of the drug addiction; and
4. The case is filed within 5 years from discovery.
Q: Bert and Baby were married to each other on 23 Dec.
1988. Six (6) months later, she discovered that he was a
drug addict. Efforts to have him rehabilitated were
unsuccessful. Can Baby ask for annulment of marriage,
or legal separation? Explain. (1996 BAR)
A: YES. Baby can file for annulment or legal separation.
There is no showing in the facts that the action had
prescribed. Thus, assuming that Bert’s drug addiction was
concealed and existed at the time of the marriage,
annulment can still be had because Baby is given 5 years
upon discovery to file the same. (Art. 47(3), FC) As for legal
separation, Baby is also given a period of 5 years. (Art. 57,
FC)
ALTERNATIVE ANSWER:
NO, Baby cannot file for annulment or legal separation,
having been ratified by her continuous cohabitation and
condonation, respectively. As for annulment, upon
discovery of her husband’s addiction, it is stated in the facts
that rehabilitation was considered but was unsuccessful.
Assuming that Baby continued living with Bert during the
rehabilitation of the latter, the fraud under Art. 45(3) in
relation to Art. 46(6), FC is ratified by their free
cohabitation. As for legal separation, choosing to first
rehabilitate her husband before filing for legal separation
after it has failed can be deemed as condonation. (Art. 56(1),
FC)
VITIATED CONSENT
(2011 BAR)
Q: Baldo, a rejected suitor, intimidated Judy into
marrying him. While she wanted to question the
validity of their marriage two years after the
intimidation ceased, Judy decided in the meantime to
freely cohabit with Baldo. After more than five (5) years
following their wedding, Judy wants to file a case for
annulment of marriage against Baldo on ground of lack
of consent. Will her action prosper? (2011 BAR)
(a) Yes, the action for annulment is
imprescriptible.
(b) No, since the marriage was merely voidable,
and Judy ratified it by freely cohabiting with
Baldo after the force and intimidation had
ceased.
(c) No, since the action prescribed 5 years from the
date of the celebration of the marriage.
(d) Yes, because the marriage was celebrated
without Judy's consent freely given.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: (b) NO, since the marriage was merely voidable, and Judy
ratified it by freely cohabiting with Baldo after the force and
intimidation had ceased.
IMPOTENCE
(2010, 2009, 2007 BAR)
Q: True or False. The day after John and Marsha got
married, John told her that he was impotent. Marsha
continued to live with John for two (2) years. Marsha is
now estopped from filing an annulment case against
John. (2010, 2007 BAR)
A: FALSE. Marsha is not estopped from filing an annulment
case against John on the ground of his impotence, because
she learned of his impotence after the celebration of the
marriage and not before. Physical incapacity to
consummate is a valid ground for the annulment of
marriage if such incapacity was existing at the time of the
marriage, continues and appears to be incurable. The
marriage may be annulled on this ground within five years
from its celebration. (Art. 45(5), FC)
Q: Emmanuel and Margarita, American citizens and
employees of the U.S. State Department, got married in
the African state of Kenya where sterility is a ground for
annulment of marriage. Thereafter, the spouses were
assigned to the U.S. Embassy in Manila. On the first year
of the spouses’ tour of duty in the Philippines,
Margarita filed an annulment case against Emmanuel
before a Philippine court on the ground of her
husband’s sterility at the time of the celebration of the
marriage. Assume Emmanuel and Margarita are both
Filipinos. After their wedding in Kenya, they come back
and take up residence in the Philippines. Can their
marriage be annulled on the ground of Emmanuel’s
sterility? (2009 BAR)
A: NO, the marriage cannot be annulled under Philippine
law. Sterility is not a ground for annulment of marriage
under Art. 45, FC.
AFFLICTED WITH AN STD
(2017, 2008, 1995 BAR)
Q: State whether the marital union is valid, void, or
voidable, and give the corresponding justifications for
your answer:
Ador and Becky’s marriage wherein Ador was afflicted
with AIDS prior to the marriage. (2017, 2008 BAR)
A: The marriage is voidable, because Ador was afflicted with
a serious and incurable STD at the time of marriage. For a
marriage to be annulled under Art. 45(6), the STD must be:
1. Existing at the time of marriage;
2. Found to be serious and incurable; and
3. Unknown to the other party.
28
 QuAMTO (1987-2022)
Since Ador was afflicted with AIDS, which is a serious and
incurable disease, and the condition existed at the time of
marriage, the marriage is voidable, provided that such
illness was not known to Becky.
Q: Yvette was found to be positive for HIV virus,
considered sexually transmissible, serious and
incurable. Her boyfriend Joseph was aware of her
condition and yet married her. After two (2) years of
cohabiting with Yvette, and in his belief that she would
probably never be able to bear him a healthy child,
Joseph now wants to have his marriage with Yvette
annulled. Yvette opposes the suit contending that
Joseph is estopped from seeking annulment of their
marriage since he knew even before their marriage that
she was afflicted with HIV virus. Can the action of
Joseph for annulment of his marriage with Yvette
prosper? Discuss fully. (1995 BAR)
A: YES, the petition for annulment will prosper. Art. 45(6),
FC will apply in this case and not Art. 45(3) in relation to
Art. 46(3), FC. Yvette’s condition was not concealed,
however, an STD found to be serious and incurable is still a
ground for annulment. In this case, estoppel cannot apply
against Joseph because the law does not qualify the
knowledge of the spouse as regards said ground.
Accordingly, Joseph still has 3 years to file for annulment.
Thus, the action will prosper.
LACK OF PARENTAL CONSENT
(2018, 1990 BAR)
Q: Sidley and Sol were married with one daughter,
Solenn. Sedfrey and Sonia were another couple with
one son, Sonny. Sol and Sedfrey both perished in the
same plane accident. Sidley and Sonia met when the
families of those who died sued the airlines and went
through grief-counseling sessions. Years later, Sidley
and Sonia got married. At that time, Solenn was 4 years
old and Sonny was 5 years old. These two were then
brought up in the same household. 15 years later,
Solenn and Sonny developed romantic feelings towards
each other, and eventually eloped. On their own and
against their parents' wishes, they procured a marriage
license and got married in church. (2018 BAR)
(a) Is the marriage of Solenne and Sonny valid,
voidable, or void?
A: The marriage is voidable for lack of parental consent. At
the time of their marriage, Solenn and Sonny were only 19
and 20 years old, respectively. Assuming their marriage was
under the Art. 14 of the FC provides that parental consent is
required where either or both of the parties are between 18
and 21 years old at the time of marriage. In the absence of
such parental consent, Art. 45, FC provides that the
marriage is voidable. Since the marriage was against their
parents’ wishes, their marriage is voidable. Unlike in the
NCC, their being step-siblings is immaterial under the
Family Code and will not render the marriage void since
29
such is not considered incestuous nor against public policy.
(b) If the marriage is defective, can the marriage be
ratified by free cohabitation of the parties?
A: YES, it can be ratified by free cohabitation. Art. 45(1), FC
provides that such voidable marriage may be ratified by
free cohabitation of the party/ies over 18 years old but
below 21 who married without the consent of his/her
parents, by living together as husband and wife after
attaining the age of 21. Here, Solenn and Sonny freely
cohabitated and lived as husband and wife after attaining
21 years, then the marriage is considered ratified, provided
that the parents have not filed an action for annulment
before the parties reached 21 years old.
Q: B and G, age 20 and 19, respectively, and both single,
eloped and got married to each other without parental
consent in the case of G, a teenage student of an
exclusive college for girls. Three (3) years later, her
parents wanted to seek judicial annulment on that
ground. You were consulted and asked to prepare the
proper complaint. What advice would you give G’s
parents? Explain your answer. (1990 BAR)
A: I would advise G’s parents that G herself should file the
complaint under Art. 45, FC, and no longer the parents,
because G is already 22 years of age.
E. EFFECT OF DEFECTIVE MARRIAGES
(2014 , 2003, 1991, 1990 BAR)
Q: Miko and Dinah started to live together as husband
and wife without the benefit of marriage in 1984. 10
years after, they separated. In 1996, they decided to live
together again, and in 1998, they got married. On 17
Feb. 2001, Dinah filed a complaint for declaration of
nullity of her marriage with Miko on the ground of
psychological incapacity under Art. 36, FC The court
rendered the following decision:
1. “Declaring the marriage null and void;
2. Dissolving the regime of absolute community of
property; and
3. Declaring that a decree of absolute nullity of
marriage shall only be issued after liquidation,
partition and distribution of the parties’
properties under Art. 147, FC.
Dinah filed a motion for partial reconsideration
questioning the portion of the decision on the issuance
of a decree of nullity of marriage only after the
liquidation, partition and distribution of properties
under Art. 147, FC.
If you are the judge, how will you decide petitioner’s
motion for partial reconsideration? Why? (2014 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: I will grant partial reconsideration. If the marriage is
declared void under Art. 36, FC the provisions of the Family
Code on liquidation, partition, and distribution of the
properties on absolute community or conjugal partnership
will not apply but rather Art. 147 or 148, FC depending on
the presence or absence of a legal impediment between
them. In Diño v. Diño (G.R. No. 178044, 19 Jan. 2011), the SC
ruled that Art. 50, FC and Sec. 19 of the Rules on Declaration
of Nullity apply only to marriages that are declared void ab
initio or annulled by final judgment under Arts. 40 and 45,
FC. In short, Art. 50, FC does not apply to marriages that are
declared void ab initio under Art. 36, FC which should be
declared void without waiting for the liquidation of the
properties of the parties.
Q: Which of the following remedies, i.e., (a) declaration
of nullity of marriage, (b) annulment of marriage, (c)
legal separation, and/or (d) separation of property, can
an aggrieved spouse avail himself/herself of: (2003
BAR)
(a) If the wife discovers after the marriage that her
husband has AIDS;
A: Since AIDS is a serious and incurable STD, the wife may
file an action for annulment of the marriage on this ground
whether such fact was concealed or not from the wife,
provided that the disease was present at the time of the
marriage. The marriage is voidable even though the
husband was not aware that he had the disease at the time
of marriage.
(b) If the wife goes abroad to work as a nurse and
refuses to come home after the expiration of
her three-year contract there;
A: If the wife refuses to come home for 3 months from the
expiration of her contract, she is presumed to have
abandoned the husband and he may file an action for
judicial separation of property. If the refusal continues for
more than one year from the expiration of her contract, the
husband may file an action for legal separation under Art.
55(10), FC on the ground of abandonment of petitioner by
respondent without justifiable cause for more than one
year. The wife is deemed to have abandoned the husband
when she leaves the conjugal dwelling without any
intention of returning. (Art. 101, FC) The intention not to
return cannot be presumed during the 3-year period of her
contract.
(c) If the husband discovers after the marriage that
his wife has been a prostitute before they got
married;
A: If the husband discovers after the marriage that his wife
was a prostitute before they got married, he has no remedy.
No misrepresentation or deceit as to character, health, rank,
fortune or chastity shall constitute fraud as legal ground for
an action for the annulment of marriage. (Art. 46, FC)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
(d) If the husband has a serious affair with his
secretary and refuses to stop notwithstanding
advice from relatives and friends;
A: The wife may file an action for legal separation. The
husband’s sexual infidelity is a ground for legal separation.
(Art. 55, FC) She may also file an action for judicial
separation of property for failure of her husband to comply
with his marital duty of fidelity. (Art. 135 (4), in relation to
Art. 101, FC)
(e) If the husband beats up his wife every time he
comes home drunk.
A: The wife may file an action for legal separation on the
ground of repeated physical violence on her person. (Art.
55(1), FC) She may also file an action for judicial separation
of property for failure of the husband to comply with his
marital duty of mutual respect. (Art. 135(4), in relation to
Art. 101, FC) She may also file an action for declaration of
nullity of the marriage if the husband’s behavior constitutes
psychological incapacity existing at the time of the
celebration of marriage.
Q: Is there any law which allows the delivery to
compulsory heirs of their presumptive legitimes during
the lifetime of their parents? If so, in what instances?
(1991 BAR)
A: YES, under Arts. 51 and 52, FCC in case of legal
separation, annulment of marriage, declaration of nullity of
marriage and the automatic termination of a subsequent
marriage by the reappearance of the absent spouse, the
common or community property of the spouses shall be
dissolved and liquidated.
Q: The marriage of H and W was annulled by the
competent court. Upon finality of the judgment of
nullity, H began looking for his prospective second
mate. He fell in love with a sexy woman, S, who wanted
to be married as soon as possible i.e., after a few months
of courtship. As a young lawyer you were consulted by
H. (1990 BAR)
(a) How soon can H be joined in lawful wedlock to
his girlfriend S? Under existing laws, are there
certain requisites that must be complied with
before he can remarry? What advice would you
give H?
A: H or either spouse for that matter, can marry again after
complying with the provisions of Art. 52, FC, namely, there
must be a partition and distribution of the properties of the
spouses, and the delivery of the children’s presumptive
legitimes, which should be recorded in the appropriate civil
registry and registries of property. H should be so advised.
(b) Suppose that children were born from the
union of H and W, what would be the status of
said children? Explain your answer.
30
 QuAMTO (1987-2022)
A: The children born from the union of H and W would be
legitimate children if conceived or born before the decree of
annulment of the marriage (Art. 45, FC) has become final
and executory. (Art. 54, FC)
(c) If the subsequent marriage of H to S was
contracted before compliance with the
statutory condition for its validity, what are the
rights of the children of the first marriage (i.e.,
of H and W) and of the children of the
subsequent marriage (of H and S)?
A: The children of the first marriage shall be considered
legitimate children if conceived or born before the
judgment of annulment of the marriage of H and W has
become final and executory. Children conceived or born of
the subsequent marriage shall likewise be legitimate even if
the marriage of H and S be null and void for failure to
comply with the requisites of Art. 52, FC. (Art. 53, FC)
As legitimate children, they have the following rights:
1. To bear the surnames of the father and the mother
in conformity with the provisions of the NCC on
Surnames;
2. To receive support from their parents, their
ascendants and in proper cases, their brothers and
sisters, in conformity with the provisions of this
Code on Support; and
3. To be entitled to the legitime and other
successional rights granted to them by the NCC.
(Art. 174, FC)
F. FOREIGN MARRIAGES
G. LEGAL SEPARATION
(2015, 2012, 2011, 2007, 2006, 1997, 1996, 1994 BAR)
Q: The wife filed a case of legal separation against her
husband on the ground of sexual infidelity without
previously exerting earnest efforts to come to a
compromise with him. The judge dismissed the case for
having been filed without complying with a condition
precedent. Is the dismissal proper? (2011 BAR)
(A) No, efforts at a compromise will only deepen the
wife’s anguish.
(B) No, since legal separation like validity of
marriage is not subject to compromise
agreement for purposes of filing.
(C) Yes, to avoid a family feud that is hurtful to
everyone.
(D) Yes, since the dispute could have been settled
with the parties agreeing to legal separation.
31
A: (B) NO, since legal separation like validity of marriage is
not subject to compromise agreement for purposes of filing.
Q: No decree of legal separation can be issued (2011
BAR)
(A) unless the children’s welfare is attended to first.
(B) without prior efforts at reconciliation shown to
be futile.
(C) unless the court first directs mediation of the
parties.
(D) without prior investigation conducted by a
public prosecutor.
A: (B) without prior efforts at reconciliation shown to be
futile.
Q: TRUE or FALSE. If a man commits several acts of
sexual infidelity, particularly in 2002, 2003, 2004,
2005, the prescriptive period to file for legal separation
runs from 2002. (2007 BAR)
A: FALSE. The 5-year prescriptive period for filing legal
separation runs from the occurrence of sexual infidelity
committed in 2002 runs from 2002, for the sexual infidelity
committed in 2003, the prescriptive period runs from 2003
and so on. The action for legal separation for the last act of
sexual infidelity in 2005 will prescribe in 2010.
Q: Under what conditions may drug addiction be a
ground for legal separation between the spouses (1997,
2002 BAR)
A:
1. There should be no condonation or consent to the
drug addiction;
2. The action must be filed within 5 years from the
occurrence of the cause; and
3. Drug addiction arises during the marriage and not
at the time of marriage.
Q: After they got married, Nikki discovered that
Christian was having an affair with another woman. But
Nikki decided to give it a try and lived with him for two
(2) years. After two (2) years, Nikki filed an action for
legal separation on the ground of Christian’s sexual
infidelity. Will the action prosper? Explain. (2012 BAR)
A: Nikki’s action will not prosper on account at
condonation. Although the action for legal separation has
not yet prescribed, the prescriptive period being five years,
the decision of Nikki to live with Christian after discovering
his affair amounts to condonation of such act. However, if
such affair is still continuing, Nikki's action would prosper
because the action will surely be 5 years from the
commission of the latest act of sexual infidelity. Every act or
sexual liaison is a ground for legal separation.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: Rosa and Ariel were married in the Catholic Church
of Tarlac, Tarlac on 05 Jan. 1988. In 1990, Ariel went to
Saudi Arabia to work. There, after being converted into
Islam, Ariel married Mystica. Rosa learned of the
second marriage of Ariel on 01 Jan. 1992 when Ariel
returned to the Philippines with Mystica. Rosa filed an
action for legal separation on 05 Feb. 1994. (1994 BAR)
(a) Does Rosa have legal grounds to ask for legal
separation?
A: YES, the abandonment of Rosa by Ariel for more than one
(1) year is a ground for legal separation unless upon
returning to the Philippines, Rosa agrees to cohabit with
Ariel which is allowed under the Muslim Code. In this case,
there is condonation.
ALTERNATIVE ANSWER:
YES. The contracting of a subsequent bigamous marriage
whether in the Philippines or abroad is a ground for legal
separation under Art. 55(7) of the Family Code. Whether the
second marriage is valid or not, Ariel having converted into
Islam is immaterial.
(b) Has the action prescribed?
A: NO. Under Art. 57, FC the aggrieved spouse must file the
action within five (5) years from the occurrence of the
cause. The subsequent marriage of Ariel could not have
occurred earlier than 1990, the time he went to Saudi
Arabia. Hence, Rosa has until 1995 to bring the action under
the Family Code.
H. PROPERTY RELATIONS BETWEEN SPOUSES
(2022, 2020-21, 2019, 2018, 2017, 2016, 2015, 2012,
2011, 2010, 2009, 2008, 2007, 2005, 2000, 1998, 1997,
1995, 1994, 1992, 1991, BAR)
Q: A couple executes a prenuptial agreement which
principally provides that their marriage shall be valid
for only 5 years but that it can be renewed through
mutual consent negotiated at least 6 months before its
expiration. Is this contract valid? Explain briefly. (2020-
21 BAR)
A: NO, the contract is not valid. A pre-nuptial agreement or
marriage settlement is a contract between the future
spouses where they agree on the property relationship that
would govern them during the marriage. (Arts. 74 & 75, FC)
In the problem, the prenuptial agreement contains nothing
about the property relationship of the parties and instead
provide for the term of the marriage. The stipulation
providing for the termination of the marriage based on the
will of the contracting parties is void for being contrary to
law. A marriage is a special contract of permanent union
between a man and a woman and is an inviolable social
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation except that
marriage settlements may fix the property relations during
the marriage within the limits provided by this code. (Art. 1,
FC) Thus, the contract is not valid. (Central Bar Q&A by
Paguirigan, 2023)
Q: Bar candidates Patricio Mahigugmaon and Rowena
Amor decided to marry each other before the last day of
the 1991 Bar Examinations. They agreed to execute a
Marriage Settlement. Rowena herself prepared the
document in her own handwriting. They agreed on the
following: a conjugal partnership of gains; (2) each
donates to the other fifty (50) percent of his/her
present property; (3) Rowena shall administer the
conjugal partnership property; and (4) neither may
bring an action for the annulment or declaration of
nullity of their marriage. Both signed the agreement in
the presence of two witnesses. They did not, however,
acknowledge it before a notary public. (1991 BAR)
(a) As to form, is the Marriage Settlement valid?
May it be registered in the registry of property?
If not, what steps must be taken to make it
registrable?
A: YES, it is valid as to form because it is in writing.
However, it cannot be registered in the registry of property
because it is not a public document. To make it registrable,
it must be reformed and has to be notarized.
(b) Are the stipulations valid?
A: Stipulations 1 and 3 are valid because they are not
contrary to law. Stipulation 4 is void because it is contrary
to law. Stipulation 2 is valid up to 1/5 of their respective
present properties by void as to the excess. (Art. 84, FC)
(c) If the Marriage Settlement is valid as to form
and the above stipulations are likewise valid,
does it now follow that said Marriage
Settlement is valid and enforceable?
A: NO, on 15 Sept. 1991, the marriage settlement is not yet
valid and enforceable until the celebration of the marriage,
to take place before the last day of the 1991 Bar
Examinations.
1. DONATION PROPTER NUPTIAS
(2020-21, 2012, 2011, 1995, 1991 BAR)
Q: Which of the following is not a requisite for a valid
donation propter nuptias? (2012 BAR)
A) The donation must be made before the
celebration of the marriage.
B) The donation shall be automatically revoked in
case of non-celebration of the marriage.
C) The donation must be made in consideration of
32
 QuAMTO (1987-2022)
the marriage.
D) The donation must be made in favor of one or
both of the future spouses.
A: (B) The donation shall be automatically revoked in case
of non-celebration of the marriage. (UPLC Suggested
Answers)
Q: In gratitude, the groom’s parents made a donation of
a property in writing to the bride’s parents shortly
before their children’s wedding. The donation was
accepted. What is the nature of the donation? (2011
BAR)
A) It is an ordinary donation since it was not given
to the bride or groom.
B) It is donation propter nuptias since it was given
with the marriage in mind.
C) It is an indirect donation propter nuptias since
the bride would eventually inherit the property
from her parents.
D) It is a remunatory donation.
A: (A) It is an ordinary donation since it was not given to the
bride or groom. (UPLC Suggested Answers)
2. VOID DONATIONS BY THE SPOUSES
3. ABSOLUTE COMMUNITY OF PROPERTY REGIME
(2019, 2017, 2015, 2012, 2009, 2008, 2007, 1995,
1994 BAR)
Q: Danny and Elsa were married in 2002. In 2012, Elsa
left the conjugal home and her two minor children with
Danny to live with her paramour. In 2015, Danny sold
without Elsa’s consent a parcel of land registered in his
name that he had purchased prior to the marriage.
Danny used the proceeds of the sale to pay for his
children’s tuition fees.
Is the sale valid, void, or voidable? Explain your answer.
(2017, 2012 BAR)
A: The sale of the parcel of land is void. There is no
indication in the facts that Danny and Elsa executed a
marriage settlement prior to their marriage. As the
marriage was celebrated during the effectivity of the FC and
absent a marriage settlement, the property regime between
the spouses is the ACP. (Art. 75, FC) Under the ACP regime,
the parcel of land belongs to the community property as the
property he had brought into the marriage even if said
property were registered in the name of Danny. (Art. 91, FC)
In addition, said property do not fall under any of the
exceptions under Art. 92. Therefore, the sale of the property
is void, because it was executed without the authority of the
court or the written consent of the other spouse. (Art. 96 &
100, FC)
33
Q: Danny and Elsa were married in 2002. In 2012, Elsa
left the conjugal home and her two minor children with
Danny to live with her paramour. In 2015, Danny sold
without Elsa's consent a parcel of land registered in his
name that he had purchased prior to the marriage.
Danny used the proceeds of the sale to pay for his
children's tuition fees. Is the sale valid, void or
voidable? Explain your answer. (2017 BAR)
A: The sale of the parcel of land is void. There is no
indication in the facts that Danny and Elsa executed a
marriage settlement prior to their marriage. As the
marriage was celebrated during the effectivity of the Family
Code, absent a marriage settlement, the property regime
between the spouses is the ACP. Under the ACP regime, the
parcel of land belongs to the community property as the
property he had brought into the marriage even if said
property were registered in the name of Danny. Therefore,
the sale of the property is void because it was executed
without the authority of the court or the written consent of
the other spouse.
Q: Marco and Gina were married in 1989. 10 years later,
or in 1999, Gina left Marco and lived with another man,
leaving their two children of school age with Marco.
When Marco needed money for their children's
education, he sold a parcel of land registered in his
name, without Gina's consent, which he purchased
before his marriage. Is the sale by Marco valid, void or
voidable? Explain with legal basis. (2015 BAR)
A: The sale made by Marco is considered void. The parties
were married in 1989 and no mention was made whether
they executed a marriage settlement. In the absence of a
marriage settlement, the parties shall be governed by ACP
whereby all the properties owned by the spouses at the time
of the celebration of the marriage as well as whatever they
may acquire during the marriage shall form part of the
absolute community. In ACP, neither spouse can sell or
encumber property belonging to the ACP without the
consent of the other. Any sale or encumbrance made by one
spouse without the consent of the other shall be void
although it is considered as a continuing offer on the part of
the consenting spouse upon authority of the court or
written consent of the other spouse. (Art. 96, FC)
Q: Adam, a building contractor, was engaged by Blas to
construct a house on a lot which he (Blas) owns. While
digging on the lot in order to lay down the foundation of
the house, Adam hit a very hard object. It turned out to
be the vault of the old Banco de las Islas Filipinas. Using
a detonation device, Adam was able to open the vault
containing old notes and coins which were in
circulation during the Spanish era. While the notes and
coins are no longer legal tender, they were valued at
P100 million because of their historical value and the
coins silver nickel content. The following filed legal
claims over the notes and coins:
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
i. Adam, as finder;
ii. Blas, as owner of the property where they were
found;
iii. Bank of the Philippine Islands, as successor-in-
interest of the owner of the vault; and
iv. The Philippine Government because of their
historical value.
Assuming that either or both Adam and Blas are
adjudged as owners, will the notes and coins be deemed
part of their absolute community or conjugal
partnership of gains with their respective spouses?
(2008 BAR)
A: YES. The hidden treasure will be part of the absolute
community or conjugal property of the respective
marriages. (Arts. 91, 93 & 106, FC)
Q: On 10 Sept. 1988 Kevin, a 26-year-old businessman,
married Karla, a winsome lass of 18. Without the
knowledge of their parents or legal guardians, Kevin
and Karla entered into an antenuptial contract the day
before their marriage stipulating that conjugal
partnership of gains shall govern their marriage. At the
time of their marriage Kevin’s estate was worth 50
Million, while Karla’s was valued at 2 Million. A month
after their marriage Kevin died in a freak helicopter
accident. He left no will, no debts, no obligations.
Surviving Kevin, aside from Karla, are his only
relatives: his brother Luis and first cousin Lilia.
What property regime governed the marriage of Kevin
and Karla? Explain. (1995 BAR)
A: ABSOLUTE COMMUNITY OF PROPERTY. Since the
marriage settlement was entered into without the consent
and without the participation of the parents (they did not
sign the document), the marriage settlement is invalid
applying Art. 78, FC which provides that a minor who
according to law may contract marriage may also enter into
marriage settlements, but they shall be valid only of the
person who may give consent to the marriage are made
parties to the agreement. (Karla was still a minor at the time
the marriage settlement was executed in Sept. 1988
because the law, R.A. No. 6809, reducing the age of majority
to 18 years took effect on 18 Dec. 1989). The marriage
settlement being void, the property regime governing the
marriage is, therefore, absolute community of property,
under Art. 75, FC.
Q: Paulita left the conjugal home because of the
excessive drinking of her husband, Alberto. Paulita, out
of her own endeavor, was able to buy a parcel of land
which she was able to register under her name with the
addendum “widow.” She also acquired stocks in a listed
corporation registered in her name. Paulita sold the
parcel of land to Rafael, who first examined the original
of the transfer certificate of title. (1994 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
(a) Has Alberto the right to share in the shares of
stock acquired by Paulita?
A: YES. The FC provides that all property acquired during
the marriage, whether the acquisition appears to have been
made, contracted or registered in the community property
unless the contrary is proved.
ALTERNATIVE ANSWER:
YES. The shares are presumed to be absolute community
property having been acquired during the marriage despite
the fact that those shares were registered only in her name.
Alberto’s right to claim his share will only arise, however, at
dissolution.
ALTERNATIVE ANSWER:
The presumption is still that the shares of stock are owned
in common. Hence, they will form part of the absolute
community or the conjugal partnership depending on what
the property regime is.
ALTERNATIVE ANSWER:
Since Paulita acquired the shares of stock by onerous title
during the marriage, these are part of the conjugal or
absolute community property, as the case may be, or after
the effectivity of the Family Code. Her physical separation
from her husband did not dissolve the community of
property. Hence, the husband has a right to share in the
shares of stock.
(b) Can Alberto recover the land from Rafael?
A: Under a community of property, whether absolute or
relative, the disposition of property belonging to such
community is void if done by just one spouse without the
consent of the other or authority of the proper court.
However, the land was registered in the name of Paulita as
“widow.” Hence, the buyer has the right to rely upon what
appears in the record of the Register of Deeds and should,
consequently, be protected. Alberto cannot recover the land
from Rafael but would have the right of recourse against his
wife.
ALTERNATIVE ANSWER:
The parcel of land is absolute community property having
been acquired during the marriage and through Paulita’s
industry despite the registration being only in the name of
Paulita. The land being community property, its sale to
Rafael without the consent of Alberto is void. However,
since the land is registered in the name of Paulita as widow,
there is nothing in the title which would raise a suspicion
for Rafael to make inquiry. He, therefore, is an innocent
purchaser for value from whom the land may no longer be
recovered.
34
 QuAMTO (1987-2022)
ALTERNATIVE ANSWER: solely in the name of either spouse, it has the inherent
character of conjugal property if it was acquired for
The parcel of land is absolute community property having valuable consideration during the marriage. (Cordova v. Ty,
been acquired during the marriage and through Paulita’s G.R. No. 246255, 03 Feb. 2021)
industry despite registration only in the name of Paulita.
The land being community property, its sale to Rafael As part of the conjugal property of Nonoy and Daday, any
without the consent of Alberto is void. disposition or encumbrance thereof must be made with the
consent of both spouses. Hence, when Nonoy sold the land
4. CONJUGAL PARTNERSHIP OF GAINS REGIME to Barby without the consent of Daday, the disposition is
(2022, 2019, 2012, 2011, 2009, 2008, 2005, 1998 BAR) void under Art. 124 of the FC. (Central Bar Q&A by
Paguirigan, 2023)
Q: TRUE or FALSE. Answer TRUE if the statement is true,
Q: Maria, wife of Pedro, withdrew P 5 Million from their
or FALSE if the statement is false. Explain your answer
conjugal funds. With this money, she constructed a
in not more than two (2) sentences.
building on a lot which she inherited from her father. Is
the building conjugal or paraphernal? Reasons. (2012
If there is no marriage settlement, the salary of a
BAR)
“spouse” in an adulterous marriage belongs to the
conjugal partnership of gains. (2009 BAR)
A: It depends. If the value of the building is more than the
value of the land, the building is conjugal and the land
A: FALSE. In an adulterous relationship, the salary of a
becomes conjugal property under Art. 120, FC. This is a case
married partner belongs to the absolute community or
of reverse accession, where the building is considered as the
conjugal partnership of such married partner with his or
principal and the land, the accessory. If, on the other hand,
her lawful spouse. Under Art. 148, FC, the property relations
the value of the land is more than the value of the building,
between married partner and his/her paramour is
then the ordinary rule of accession applies where the land
governed by ordinary co-ownership where the partners
is the principal and the building, the accessory. In such case,
become co-owners only when they contributed to the
the land remains paraphernal property and the building
acquisition of the property. The paramour is deemed to
becomes paraphernal properly.
have not contributed to the earning of the salary of the
married partner.
NOTE: The rule on reverse accession is applicable only to
the regime of CPG in both the FC and the NCC. The foregoing
Q Before they married in 2000, Nonoy and Daday signed
answer assumes that CPG is the regime of the property
a marriage settlement wherein they agreed that their
relations of the spouses.
property relations as husband and wife would be
governed by the conjugal partnership of gains. While
Q: Sps. Biong and Linda wanted to sell their house. They
the marriage was subsisting, they acquired a parcel of
found a prospective buyer, Ray. Linda negotiated with
land using conjugal funds. The Register of Deeds issued
Ray for the sale of the property. They agreed on a fair
a transfer certificate of title over the said land in the
price of P2 Million. Ray sent Linda a letter confirming
name of “Nonoy, married to Daday”. Nonoy sold the
his intention to buy the property. Later, another couple,
parcel of land to Barby without Daday’s consent. Daday
Bernie and Elena, offered a similar house at a lower
was not aware of the sale and did not sign the contract
price of P1.5 Million. But Ray insisted on buying the
of sale. A year after Nonoy and Barby signed the
house of Biong and Linda for sentimental reasons. Ray
contract of sale, Daday died. When the children of
prepared a deed of sale to be signed by the couple and
Nonoy and Daday learned about the sale to Barby, they
a manager's check for P2 Million. After receiving the P2
questioned its validity since Daday had not consented
Million, Biong signed the deed of sale. However, Linda
to the sale. Nonoy’s position is that Daday’s consent was
was not able to sign it because she was abroad. On her
not required because the property was registered in his
return, she refused to sign the document saying she
name.
changed her mind. Linda filed suit for nullification of
the deed of sale and for moral and exemplary damages
Is the sale to Barby valid? Explain briefly. (2022 BAR)
against Ray. (2006 BAR)

A: NO, the sale to Barby is not valid. There is a presumption

(a) Will the suit proper?
that all properties acquired during the marriage belong to
the conjugal partnership whether the acquisition appears to
A: YES, the suit for nullification of the deed of sale will
have been made, contracted, or registered in the name of
prosper. Sale of community property requires written
only one of the spouses. (Art. 116, FC) The fact that a spouse
consent of both spouses. The failure or refusal of Linda to
is identified as the sole vendee in the deed, and registered
affix her signature on the deed of sale, coupled with her
owner in the certificate of title does not destroy the conjugal
express declaration of opposing the sale negates any valid
nature of the property as the registration is not conclusive
consent on her part. The consent of Biong by himself is
evidence of the exclusive ownership of either the husband
insufficient to effect a valid sale of community property (Art.
or the wife. Even if the property appears to be registered

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96, FC; Abalos v. Macatangay, G.R. No. 155043, September 30,
2004). However, Linda will not be entitled to damages
because Ray is not in any way in bad faith.
(b) Does Ray have any cause of action against Biong
and Linda? Can he also recover damages from
the spouses? Explain.
A: YES, Ray has a cause of action against Linda and Biong
for the return of the 2 million pesos he paid for the property.
He may recover damages from the spouses, if it can be
proven that they were in bad faith in backing out from the
contract, as this is an act contrary to morals and good
customs under Arts. 19 and 21, NCC.
Q: Gabby and Mila got married at Lourdes Church in
Quezon City on July 10, 1990. Prior thereto, they
executed a marriage settlement whereby they agreed
on the regime of conjugal partnership of gains. The
marriage settlement was registered in the Register of
Deeds of Manila, where Mila is a resident. In 1992, they
jointly acquired a residential house and lot, as well as a
condominium unit in Makati. In 1995, they decided to
change their property relations to the regime of
complete separation of property. Mila consented, as she
was then engaged in a lucrative business. The spouses
then signed a private document dissolving their
conjugal partnership and agreeing on a complete
separation of property.
Thereafter, Gabby acquired a mansion in Baguio City,
and a 5-hectare agricultural land in Oriental Mindoro,
which he registered exclusively in his name. In the year
2000, Mila's business venture failed, and her creditors
sued her for P10,000,000.00. After obtaining a
favorable judgment, the creditors sought to execute on
the spouses' house and lot and condominium unit, as
well as Gabby's mansion and agricultural land. (2005
BAR)
(a) Discuss the status of the first and the amended
marriage settlements.
A: The marriage settlement between Gabby and Mila
adopting the regime of conjugal partnership of gains still
subsists. It is not dissolved by the mere agreement of the
spouses during the marriage. It is clear from Art. 134 of the
FC that in the absence of an express declaration in the
marriage settlement, the separation of property between
the spouses during the marriage shall not take place except
by judicial order.
ALTERNATIVE ANSWER:
1) The first marriage settlement was valid because it was in
writing, signed by the parties and executed before the
celebration of the marriage.
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2023 GOLDEN NOTES
2) The subsequent agreement of the parties was void as a
modification of their marriage settlement. To be valid, the
modification must be executed before the celebration of the
marriage. The subsequent agreement of the parties did not
effect a dissolution of their conjugal partnership and a
separation of their properties because it was not approved
by the court. To be valid, an agreement by the parties to
dissolve their conjugal partnership and to separate their
properties during the marriage has to be approved by the
court.
(b) Discuss the effects of the said settlements on
the properties acquired by the spouses.
A: The regime of conjugal partnership of gains governs the
properties acquired by the spouses. All the properties
acquired by the spouses after the marriage belong to the
conjugal partnership. Under Art. 116 of the FC, even if
Gabby registered the mansion and 5-hectare agricultural
land exclusively in his name, still they are presumed to be
conjugal properties, unless the contrary is proved.
ALTERNATIVE ANSWER:
Since the marriage settlement was binding between the
parties, conjugal partnership of gains was the regime of
their property relations. Under the regime of conjugal
partnership of gains, all properties acquired by the spouses
during the marriage, jointly or by either one of them,
through their work or industry are conjugal. Therefore, the
residential house and lot, and the condominium unit are
conjugal having been jointly acquired by the couple during
the marriage. Inasmuch as the subsequent agreement on
dissolution of the conjugal partnership and separation of
property was invalid, conjugal partnership subsisted
between the parties. Therefore, the mansion and the
agricultural land are also conjugal having been acquired by
one of the spouses during the marriage.
(c) What properties may be held answerable for
Mila's obligations? Explain.
A: Since all the properties are conjugal, they can be held
answerable for Mila's obligation if the obligation redounded
to the benefit of the family. (Art. 121(3), FC) However, the
burden of proof lies with the creditor claiming against the
properties. (Ayala Investment v. CA, G.R. No. 118305, 12 Feb.
1998, reiterated in Homeowners Savings & Loan Bank v.
Dailo, G.R. No. 153802, 11 Mar. 2005) (UPLC Suggested
Answers)
ALTERNATIVE ANSWER:
Except for the residential house which is the family home,
all other properties of Gabby and Mila may be held
answerable for Mila's obligation. Since the said properties
are conjugal in nature, they can be held liable for debts and
obligations contracted during the marriage to the extent
that the family was benefited or where the debts were
contracted by both spouses, or by one of them, with the
36
 QuAMTO (1987-2022)
consent of the other.
A family home is a dwelling place of a person and his family.
It confers upon a family the right to enjoy such property,
which must remain with the person constituting it as a
family home and his heirs. It cannot be seized by creditors
except in special cases. (Taneo, Jr. v. CA, G.R. No. 108532, 09
Mar. 1999) (UPLC Suggested Answers)
ALTERNATIVE ANSWER:
The marriage settlement cannot prejudice third parties,
such as the creditors, because it was not registered with the
local civil registrar where the marriage was recorded. To
bind third parties, the FC requires registration of the
marriage settlement not only with the proper registers of
deeds but also with the local civil registrar where the
marriage was recorded. Hence, if the rules on conjugal
partnership will prejudice the creditors, the rules on
absolute community will be applied instead. However,
insofar as debts contracted by one spouse without the
consent of the other are concerned, the rule is the same for
both conjugal partnership and absolute community. The
partnership or community is liable for debts contracted by
one spouse but only to the extent that it benefited the
family. Therefore, if the debts contracted by Mila redounded
to the benefit of the family, all the conjugal partnership
properties are liable to pay them but only to the extent the
family was benefited. The separate properties of Mila may
be held answerable for Mila’s debts and obligations that did
not redound to the benefit of the family.
Q: In 1970, Bob and Issa got married without executing
a marriage settlement. In 1975, Bob inherited from his
father a residential lot upon which, in 1981, he
constructed a two-room bungalow with savings from
his own earnings. At that time, the lot was worth
P800,000.00 while the house, when finished cost
P600,000.00. In 1989 Bob died, survived only by his
wife, Issa and his mother, Sofia. Assuming that the
relative values of both assets remained at the same
proportion: (1998 BAR)
(a) State whether Sofia can rightfully claim that the
house and lot are not conjugal but exclusive
property of her deceased son.
A: Since Bob and Sofia got married in 1970, then the law that
governs is the NCC, in which case, the property relations
that should be applied as regards the property of the
spouses is the system of relative community or conjugal
partnership of gains. (Art. 119, FC) By conjugal partnership
of gains, the husband and the wife place in a common fund
the fruits of their separate property and the income from
their work or industry. (Art. 142, FC) In this instance, the lot
inherited by Bob in 1975 is his own separate property, he
having acquired the same by lucrative title. (Art. 148(2), FC)
However, the house constructed from his own savings in
1981 during the subsistence of his marriage with Issa is
conjugal property and not exclusive property in accordance
37
with the principle of "reverse accession" provided for in Art.
158, FC.
(b) Will your answer be the same if Bob died before
03 Aug. 1988?
A: YES, the answer would still be the same. Since Bob and
Issa contracted their marriage way back in 1970, then the
property relations that will govern is still the relative
community or conjugal partnership of gains. (Art. 119, NCC)
It will not matter if Bob died before or after 03 Aug.1988
(effectivity date of the FC), what matters is the date when
the marriage was contracted. As Bob and Issa contracted
their marriage way back in 1970, the property relation that
governs them is still the CPG. (Art. 158, FC)
Q: Tim came into possession of an old map showing
where a purported cache of gold bullion was hidden.
Without any authority from the government Tim
conducted a relentless search and finally found the
treasure buried in a new riverbed formerly part of a
parcel of land owned by spouses Tirso and Tessie. The
old river which used to cut through the land of Spouses
Ursula and Urbito changed its course through natural
causes.
Suppose Tirso and Tessie were married on 02 Aug.
1988 without executing any antenuptial agreement.
One year after their marriage, Tirso while supervising
the clearing of Tessie’s inherited land on the latter’s
request, accidentally found the treasure not in the new
riverbed but on the property of Tessie. To whom shall
the treasure belong? (1995 BAR)
A: Since Tirso and Tessie were married before the
effectivity of the FC, their property relation is governed by
CPG. Under Art. 54 of the NCC, the share of the hidden
treasure which the law awards to the finder or proprietor
belongs to the CPG. The 1/2 share pertaining to Tessie as
owner of the land, and the 1/2 share pertaining to Tirso as
finder of the treasure, belong to the CPG.
5. SEPARATION OF PROPERTY REGIME
6. PROPERTY REGIME OF UNIONS WITHOUT
MARRIAGE
(2018, 2016, 2015, 2012, 2010, 2009, 2000, 1997,
1992, 1991 BAR)
Q: After finding out that his girlfriend Sandy was 4
months pregnant, Sancho married Sandy. Both were
single and had never been in any serious relationship
in the past. Prior to the marriage, they agreed in a
marriage settlement that the regime of conjugal
partnership of gains shall govern their property
relations during marriage. Shortly after the marriage,
their daughter, Shalimar, was born.
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Before they met and got married, Sancho purchased a
parcel of land on installment, under a Contract of Sale,
with the full purchase price payable in equal annual
amortizations over a period of 10 years, with no down
payment, and secured by a mortgage on the land. The
full purchase price was PhP1 million, with interest at
the rate of 6% per annum. After paying the 4th annual
installment, Sancho and Sandy got married, and Sancho
completed the payments in the subsequent years from
his salary as an accountant. The previous payments
were also paid out of his salary. During their marriage,
Sandy also won PhP1 million in the lottery and used it
to purchase jewelry. When things didn't work out for
the couple, they filed an action for declaration of nullity
of their marriage based on the psychological incapacity
of both of them. When the petition was granted, the
parcel of land and the jewelry bought by Sandy were
found to be the only properties of the couple. (2018
BAR)
a. What system of property relationship will be
liquidated following the declaration of nullity
of their marriage?
A: The property regime that will be liquidated is co-
ownership under Article 147 of the Family Code. When a
man and a woman who are capacitated to marry each other
live exclusively with each other as husband and wife under
a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by
the rules on co-ownership (Article 147, Family Code).
Sancho and Sandy were capacitated to marry each other;
however, their marriage was declared void under Art. 36.
(UPLC Suggested Answers)
b. In the liquidation, who should get the parcel of
land? The jewelry?
A: Sancho should get the parcel of land while Sandy should
get the jewelry. According to Article 147 of the Family Code,
property acquired through their work or industry by a man
and a woman, who are capacitated to marry each other and
who cohabited under a void marriage, shall be governed by
rules on co-ownership and in the absence of proof to the
contrary, properties acquired while they live together shall
be presumed to have been obtained by their joint efforts,
work or industry. In the given case, Sancho bought the
parcel of land and paid for it using his salary while Sandy
used her winnings from the lottery to purchase the jewelry.
It was not established that Sandy cared for or maintained
the family; hence, she should not be deemed to have
contributed to the acquisition of the parcel of land. The
jewelry was acquired by Sandy using her lottery winnings
which she obtained not by work or industry but by chance.
(UPLC Suggested Answers)
c. Is Shalimar entitled to payment of presumptive
legitime? If yes, how much should be her share
and from where should this be taken?
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2023 GOLDEN NOTES
A: NO, Shalimar is not entitled to presumptive legitime. The
liquidation of the co-ownership under Art. 147 did not
provide for the obligation to pay the presumptive legitime
of the common children. Said obligation applies only to the
liquidation of the absolute community or conjugal
partnership of gains pursuant to Arts. 50 and 51 of the
Family Code, which provisions are inapplicable to a void
marriage under Art. 36 of the FC. The rules on co-ownership
apply and the properties of the parties should be liquidated
in accordance with the Civil Code provisions on co-
ownership. (Dino v. Dino, 640 SCRA 178 (2011); Valdes v.
RTC, 260 SCRA 221 (1996)). (UPLC Suggested Answers)
Q: Bernard and Dorothy lived together as common-law
spouses although they are both capacitated to marry.
After one year of cohabitation, Dorothy went abroad to
work in Dubai as a hair stylist and regularly sent money
to Bernard. With the money, Bernard bought a lot. For
a good price, Bernard sold the lot. Dorothy came to
know about the acquisition and sale of the lot and filed
a suit to nullify the sale because she did not give her
consent to the sale. (2016 BAR)
(a) Will Dorothy's suit prosper? Decide with
reasons.
YES, Dorothy’s suit will prosper, unless the buyer is a buyer
in good faith and for value. The rule of co-ownership
governs the property relationship in a union without
marriage between a man and a woman who are capacitated
to marry each other. Art. 147, FC is specifically applicable.
Under this article, neither party can encumber or dispose by
acts inter vivos of his or her share in the property acquired
during cohabitation and owned in common, without the
consent of the other, until after the termination of their
cohabitation, thus, Bernard may not validly dispose of the
lot without the consent of Dorothy as the lot was acquired
through their work during their cohabitation.
(b) Suppose Dorothy was jobless and did not
contribute money to the acquisition of the lot
and her efforts consisted mainly in the care and
maintenance of the family and household, is her
consent to the sale a prerequisite to its validity?
Explain.
A: Yes, if Dorothy was jobless and did not contribute money
to the acquisition of the lot, her consent is still a prerequisite
to the validity of the sale. Under the same article, a party
who did not participate in the acquisition by the other party
of any property shall be deemed to have contributed jointly
in the acquisition thereof if the former’s efforts consisted in
the care and maintenance of the family and the household.
In this case, although the money used to buy the lot was
solely from Bernard, Dorothy’s care and maintenance of the
family and household are deemed contributions in the
acquisition of the lot. Art. 147(2), FC is applicable, as the lot
is deemed owned in common by the common-law spouses
in equal shares as the same was acquired during their
cohabitation, without prejudice to the rights of a buyer in
38
 QuAMTO (1987-2022)
good faith and for value.
Q: Bert and Joe, both male and single, lived together as
common law spouses and agreed to raise a son of Bert's
living brother as their child without legally adopting
him. Bert worked while Joe took care of their home and
the boy. In their 20 years of cohabitation they were able
to acquire real estate assets registered in their names
as co-owners. Unfortunately, Bert died of cardiac
arrest, leaving no will. Bert was survived by his
biological siblings, Joe, and the boy. (2015 BAR)
a) Can Art. 147 on co-ownership apply to Bert and
Joe, whereby all properties they acquired will
be presumed to have been acquired by their
joint industry and shall be owned by them in
equal shares?
A: NO, Art. 147 of the Family Code is not applicable to the
case of Bert and Joe. Art. 147 applies only when a “man and
a woman, who are capacitated to marry each other, live
exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage". In this case,
Bert and Joe are both men; they are also incapacitated from
marrying each other since in this jurisdiction, marriage may
only take place between a man and a woman. (Arts. 1 and 2,
FC)
b) If Bert and Joe had decided in the early years of
their cohabitation to jointly adopt the boy,
would they have been legally allowed to do so?
Explain with legal basis?
A: NO, because joint adoption is allowed between husband
and wife. Even if Bert and Joe are cohabiting with each
other, they are not vested with the right to jointly adopt
under the Family Code or even under the Domestic
Adoption Act. (Sec. 7, R.A. 8552) (Bar Q&A by Paguirigan)
Q: Jambrich, an Austrian, fell in-love and lived together
with Descallar and bought their houses and lots at Agro-
Macro Subdivision. In the Contracts to Sell, Jambrich
and Descallar were referred to as the buyers. When the
Deed of Absolute Sale was presented for registration
before the Register of Deeds, it was refused because
Jambrich was an alien and could not acquire alienable
lands of the public domain. After Jambrich and
Descallar separated, Jambrich purchased an engine and
some accessories for his boat from Borromeo. To pay
for his debt, he sold his rights and interests in the Agro-
Macro properties to Borromeo. Borromeo discovered
that titles to the 3 lots have been transferred in the
name of Descallar. Who is the rightful owner of the
properties? Explain. (2012 BAR)
A: It depends. On the assumption that the FC is the
applicable law, the ownership of the properties depends on
whether or not Jambrich and Descallar are capacitated to
marry each other during their cohabitation, and whether or
not both have contributed funds for the acquisition of the
39
properties. If both of them were capacitated to marry each
other, Art. 147 of the FC will apply to their property
relations and the properties in question are owned by them
in equal shares even though all the funds used in acquiring
the properties came only from the salaries or wages or the
income of Jambrich from his business or profession. In such
a case, while Jambrich is disqualified to own any part of the
properties, his subsequent transfer of all his interest therein
to Borromeo, a Filipino, was valid as it removed the
disqualification. In such case, the properties are owned by
Borromeo and Descallar in equal shares.
If, on the other hand, Jambrich and Descallar were not
capacitated to marry each other, Art. 153, FC governs their
property relations. Under this regime, Jambrich and
Descallar are owners of the properties but only if both of
them contributed in their acquisition. If all the funds used in
acquiring the properties in question came from Jambrich,
the entire property is his even though he is disqualified
from owning it. His subsequent transfer to Borromeo,
however, is valid as it removed the disqualification. In such
case, all of the properties are owned by Borromeo. If, on the
other hand, Descallar contributed to their acquisition, the
properties are co-owned by Descallar and Borromeo in
proportion to the respective contributions of Descallar and
Jambrich.
NOTE: The facts of the problem are not exactly the same as
in the case of Borromeo v. Descallar (G.R. No. 159310, 24 Feb.
2009) hence, the difference in the resulting answer)
Q: G and B were married on 03 July 1989. On 04 Mar.
2001, the marriage, which bore no offspring, was
declared void ab initio under Art. 36, FC. At the time of
the dissolution of the marriage, the couple possessed
the following properties:
1. A house and lot acquired by B on 03 Aug. 1988, 1/3
of the purchase price (representing down
payment) of which he paid; 1/3 was paid by G on
14 Feb. 1990 out of a cash gift given to her by her
parents on her graduation on 06 Apr. 1989; and
the balance was paid out of the spouses’ joint
income; and
2. An apartment unit donated to B by an uncle on 19
June 1987. (2010 BAR)
(a) Who owns the foregoing properties? Explain.
A: Since the marriage was declared void ab initio in 2001, no
absolute community or conjugal partnership was ever
established between B and G. Their property relation is
governed by a “special co-ownership” under Art. 147, FC
because they were capacitated to marry each other.
Under Art. 147, FC wages and salaries of the “former
spouses” earned during their cohabitation shall be owned
by them in equal shares while properties acquired thru
their work for industry shall be owned by them in
proportion to their respective contributions. Care and
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 CIVIL LAW
maintenance of the family is recognized as a valuable
contribution. In the absence of proof as to the value of their
respective contributions, they shall share equally.
If ownership of the house and lot was acquired by B on 03
Aug. 1988 at the time he bought it on installment before he
got married, he shall remain owner of the house and lot but
he must reimburse G for all the amounts she advanced to
pay the purchase price and for one-half share in the last
payment from their joint income. In such case, the house
and lot were not acquired during their cohabitation, hence,
are not co-owned by B and G.
But if the ownership of the house and lot was acquired
during the cohabitation, the house and lot will be owned as
follows:
i. 1/3 of the house and lot is owned by B. He is an
undivided co-owner to that extent for his
contributions in its acquisition in the form of the
down payment he made before the celebration of the
marriage. The money he used to pay the down
payment was not earned during the cohabitation,
hence, it is his exclusive property.
ii. 1/3 of the house and lot is owned by G. She is an
undivided co-owner to the extent for her
contribution in its acquisition when she paid 1/3 of
the purchase price using the gift from her parents.
Although the gift was acquired by G during her
cohabitation with B, it is her exclusive property. It did
not consist of wage or salary or fruit of her work or
industry.
iii. 1/3 of the house is co-owned by B and G because the
payment came from their co-owned funds, i.e., their
joint income during their cohabitation which is
shared by them equally in the absence of any proof to
the contrary.
After summing up their prospective shares, B and G are
undivided co-owners of the house and lot in equal shares.
As to the apartment, it is owned exclusive by B because he
acquired it before their cohabitation. Even if he acquired it
during their cohabitation, it will still be his exclusive
property because it did not come from his wage or salary,
or from his work or industry. It was acquired gratuitously
from his uncle.
(b) If G and B had married on 03 July 1987 and their
marriage was dissolved in 2007, who owns the
properties? Explain.
A: The answer is the same as in letter A. Since the parties to
the marriage which was later declared void ab initio were
capacitated to marry each other, the applicable law under
the NCC was Art. 144. This Article is substantially the same
as Art. 147, FC.
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Hence, the determination of ownership will remain the
same as in question A. And even assuming that the two
provisions are not the same, Art. 147, FC is still the law that
will govern the property relations of B and G because under
Art. 256, the FC has retroactive effect insofar as it does not
prejudice or impair vested or acquired rights under the NCC
or other laws. Applying Art. 147, FC retroactively to the case
of G and B will not impair any vested right. Until the
declaration of nullity of the marriage under the FC, B and G
have not yet acquired any vested right over the properties
acquired during their cohabitation.
Q: In 1997, B and G started living together without the
benefit of marriage. The relationship produced one
offspring, Venus. The couple acquired a residential lot
in Parañaque. After four (4) years or in 2001, G having
completed her 4-year college degree as a full-time
student, she and B contracted marriage without a
license.
The marriage of B and G was, two years later, declared
null and void due to the absence of a marriage license.
If you were the judge who declared the nullity of the
marriage, to whom would you award the lot? Explain
briefly. (2010 BAR)
A: Since the marriage was null and void, no Absolute
Community or Conjugal Partnership was established
between B and G. Their properties are governed by the
“special co-ownership” provision of Art. 147, FC because
both B and G were capacitated to marry each other. The said
Article provides that when a man and a woman who are
capacitated to marry each other, live exclusively with each
other as husband and wife without the benefit of marriage,
or under a void marriage: (1) their wages and salaries shall
be owned by them in equal shares; and (2) property
acquired by both of them through their work or industry
shall be governed by the rules on co-ownership. In co-
ownership, the parties are co-owners if they contributed
something of value in the acquisition of the property. Their
share is in proportion to their respective contributions. In
an ordinary co-ownership the care and maintenance of the
family is not recognized as a valuable contribution for the
acquisition of a property. In the Art. 147 “special co-
ownership”, however, care and maintenance is recognized
as a valuable contribution which will entitle the contributor
to half of the property acquired.
Having been acquired during their cohabitation, the
residential lot is presumed acquired through their joint
work and industry under Art. 147, hence B and G are co-
owners of the said property in equal shares.
Art. 147 also provides that when a party to the void
marriage was in bad faith, he forfeits his share in the co-
ownership in favor of the common children or descendants.
In default of children or descendants, the forfeited share
shall belong to the innocent party. In the foregoing problem,
there is no showing that one party was in bad faith. Hence,
both shall be presumed in good faith and no forfeiture shall
40
 QuAMTO (1987-2022)
take place.
Q: In Dec. 2000, Michael and Anna, after obtaining a
valid marriage license, went to the Office of the Mayor
of Urbano, Bulacan, to get married. The Mayor was not
there, but the Mayor’s secretary asked Michael and
Anna and their witnesses to fill up and sign the required
marriage contract forms. The secretary then told them
to wait and went out to look for the Mayor who was
attending a wedding in a neighboring municipality.
When the secretary caught up with the Mayor at the
wedding reception, she showed him the marriage
contract forms and told him that the couple and their
witnesses were waiting in his office. The Mayor
forthwith signed all the copies of the marriage contract,
gave them to the secretary who returned to the Mayor’s
office. She then gave copies of the marriage contract to
the parties and told Michael and Anna that they were
already married. Thereafter, the couple lived together
as husband and wife, and had three sons.
What governs the properties acquired by the couple?
Explain. (2009 BAR)
A: The marriage being void, the property relationship that
governed their union is special co-ownership under Art.
147, FC. This is on the assumption that there was no
impediment for them to validly marry each other.
Q: In 1989, Rico, then a widower, 40 years of age,
cohabited with Cora, a widow, 30 years of age. While
living together, they acquired from their combined
earnings a parcel of rice land. After Rico and Cora
separated, Rico lived together with Mabel, a maiden 16
years of age. While living together, Rico was a salaried
employee and Mabel kept house for Rico and did full-
time household chores for him. During their
cohabitation, a parcel of coconut land was acquired by
Rico from his savings. After living together for one (1)
year, Rico and Mabel separated. Rico then met and
married Letty, a single woman 26 years of age. During
the marriage of Rico and Letty, Letty bought a mango
orchard out of her own personal earnings. (2000, 1997,
1992 BAR)
(a) Who would own the rice land, and what
property relations govern the ownership?
Explain.
A: Rico and Cora are the co-owners of the rice land. The
Relations is that of co-ownership. (Art. 147(1), FC) However,
after Rico's marriage to Letty, the half interest of Rico in the
riceland will then become absolute community property of
Rico and Letty.
(b) Who would own the coconut land, and what
property Relations governs the ownership?
Explain.
41
A: Rico is the exclusive owner of the coconut land. The
Relations is a sole/single proprietorship. (Art. 148(1), FC, is
applicable, and not Art. 147, FC) However, after Rico's
marriage to Letty, the coconut land of Rico will then become
absolute community property of Rico and Letty.
(c) Who would own the mango orchard, and what
property relation governs the ownership?
Explain.
A: Rico and Letty are the co-owners. The relation is the
Absolute Community of Property. (Arts. 75, 90 & 91, FC)
Q: For 5 years since 1989, Tony, a bank vice-president,
and Susan, an entertainer, lived together as husband
and wife without the benefit of marriage although they
were capacitated to marry each other. Since Tony's
salary was more than enough for their needs, Susan
stopped working and merely "kept house." During that
period, Tony was able to buy a lot and house in a plush
subdivision. However, after five years, Tony and Susan
decided to separate. (2000 BAR)
(a) Who will be entitled to the house and lot?
A: Tony and Susan are entitled to the house and lot as co-
owners in equal shares. Under Art. 147, FC, when a man and
a woman who are capacitated to marry each other lived
exclusively with each other as husband and wife, the
property acquired during their cohabitation are presumed
to have been obtained by their joint efforts, work or
industry and shall be owned by them in equal shares. This
is true even though the efforts of one of them consisted
merely in his or her care and maintenance of the family and
of the household.
(b) Would it make any difference if Tony could not
marry Susan because he was previously
married to Alice from whom he is legally
separated?
A: YES, it would make a difference. Under Art. 148, FC, when
the parties to the cohabitation could not marry each other
because of an impediment, only those properties acquired
by both of them through their actual joint contribution of
money, property, or industry shall be owned by them in
common in proportion to their respective contributions.
The efforts of one of the parties in maintaining the family
and household are not considered adequate contribution in
the acquisition of the properties. Since Susan did not
contribute to the acquisition of the house and lot, she has no
share therein. If Tony cohabited with Susan after his legal
separation from Alice, the house and lot is his exclusive
property. If he cohabited with Susan before his legal
separation from Alice, the house and lot belong to his
community or partnership with Alice.
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 CIVIL LAW
Q: Luis and Rizza, both 26 years of age and single, live
exclusively with each other as husband and wife
without the benefit of marriage. Luis is gainfully
employed. Rizza is not employed, stays at home, and
takes charge of the household. After living together for
a little over twenty years, Luis was able to save from his
salary earnings during that period the amount of
P200,000.00 presently deposited in a bank. A house
and lot worth P500,000.00 used by the common-law
spouses to purchase the property, P200,000.00 had
come from the sale of palay harvested from the
hacienda owned by Luis and P300,000.00 from the
rentals of a building belonging to Rizza. In fine, the sum
of P500,000.00 had been part of the fruits received
during the period of cohabitation from their separate
property. A car worth P100,000.00, being used by the
common-law spouses, was donated just months ago to
Rizza by her parents.
Luis and Rizza now decide to terminate their
cohabitation, and they ask you to give them your legal
advice on the following: (1997 BAR)
(a) How, under the law, should the bank deposit of
P200,000.00, the house and lot valued at
P500,000.00 and the car worth P100,000.00 be
allocated to them?
A: Art. 147, FC provides in part that when a man and a
woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them through their work or
industry shall be governed by the rules of co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall
be owned by them in equal shares. A party who did not
participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the
acquisition thereof if the former’s efforts consisted in the
care and maintenance of the family and of the household.
Thus:
1. The wages and salaries of Luis in the amount of
P200,000.00 shall be divided equally between Luis
and Rizza.
2. The house and lot valued at P500,000.00 having
been acquired by both of them through work or
industry shall be divided between them in
proportion to their respective contribution in
consonance with the rules on co-ownership. Hence,
Luis gets 2/5 while Rizza gets 3/5 of P500,000.00.
3. The car worth P100,000.00 shall be exclusively
owned by Rizza, the same having been donated to
her by her parents.
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2023 GOLDEN NOTES
(b) What would your answer be (to the above
question) had Luis and Rizza been living
together all the time, i.e., since 20 years ago,
under a valid marriage?
A: The property relations between Luis and Rizza, their
marriage having been celebrated 20 years ago (during the
effectivity of the NCC) shall be governed by the conjugal
partnership of gains, under which the husband and wife
place in a common fund the proceeds, products, fruits and
income from their separate properties and those acquired
by either or both spouses through their efforts of by chance,
and upon dissolution of the marriage or of the partnership,
the net gains or benefits obtained by either or both spouse
shall be divided equally between them. (Art. 142, FC)
Thus:
1. The salary of Luis deposited in the bank in the
amount of P200,000.00 and the house and lot
valued at P500,000.00 shall be divided equally
between Luis and Rizza.
2. However, the car worth P100,000.00 donated to
Rizza by her parents shall be considered to her own
paraphernal property, having been acquired by
lucrative title. (Art. 148(2), FC)
Q: In June 1985, James married Mary. In Sept. 1988, he
also married Ophelia with whom he begot two (2)
children, A and B. In July 1989, Mary died. In July 1990,
he married Shirley and abandoned Ophelia. During
their union, James and Ophelia acquired a residential
lot worth P300,000.00.
Ophelia sues James for bigamy and prays that his
marriage with Shirley be declared null and void. James,
on the other hand, claims that since his marriage to
Ophelia was contracted during the existence of his
marriage with Mary, the former is not binding upon
him, the same being void ab initio; he further claims
that his marriage to Shirley is valid and binding as he
was already legally capacitated at the time he married
her. What property regime governed the union of James
and Ophelia? (1991 BAR)
A: The provisions of Art. 148, FC shall govern. In cases of
cohabitation not falling under the preceding Article, only
the properties acquired by both of the parties through their
actual joint contribution of money property, or industry
shall be owned by them in common in proportion to their
respective contributions. In the absence of proof to the
contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall
apply to joint deposits of money and evidence of credit.
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 QuAMTO (1987-2022)
7. JUDICIAL SEPARATION OF PROPERTY partition the property. Carlito opposed invoking Art.
(1998 BAR) 159 of the FC. Carlito alleged that since his minor child
Lucas still resides in the premises, the family home
continues until that minor beneficiary becomes of age.
Q: In 1973, Mauricio, a Filipino pensioner of the U.S.
Government, contracted a bigamous marriage with
Is the contention of Carlito tenable? (2014 BAR)
Erlinda, despite the fact that his first wife, Carol, was
still living. In 1975, Mauricio and Erlinda jointly bought
A: NO, the contention of Carlito is not tenable. To qualify as
a parcel of rice land, with the title being placed jointly
beneficiary of the family home, the person must be among
in their names. Shortly thereafter, they purchased
those mentioned in Art. 154, NCC, he/she must be actually
another property (a house and lot) which was placed in
living in the family home and must be dependent for legal
her name alone as the buyer. In 1981, Mauricio died,
support upon the head of the family. (Patricio v. Dario, G.R.
and Carol promptly filed an action against Erlinda to
No. 170829, 20 Nov. 2006) While Lucas, the son of Carlito
recover both the Riceland and the house and lot,
satisfies the first and second requisites, he cannot however,
claiming them to be conjugal property of the first
directly claim legal support from his grandmother, Leonora
marriage. Erlinda contends that she and the late
because the person primarily obliged to give support to
Mauricio were co-owners of the Riceland; and with
Lucas is his father, Carlito. Thus, partition may be
respect to the house and lot, she claims she is the
successfully claimed by Leonora and Danilo.
exclusive owner. Assuming she fails to prove that she
had actually used her own money in either purchase,
how do you decide the case? (1998 BAR)
K. PATERNITY AND FILIATION
A: Under Art. 148, FC, which applies to bigamous marriages, (2019, 2018, 2015, 2010, 2009, 2008, 2006, 2005,
only the properties through their actual joint contribution 2003, 1999, 1995, 1990 BAR)
of money, property or industry shall be owned by them in
common in proportion to their respective contributions.
Moreover, if one of the parties is validly married to another, 1. CONCEPTS OF PATERNITY, FILIATION, AND
his share in the co-ownership shall accrue to the absolute LEGITIMACY
community, conjugal partnership existing in such valid (2019, 2018, 2015 BAR)
marriage. Thus, in this case, since Erlinda failed to prove
that she used her own money to buy the Riceland and house
Q: Julie had a relationship with a married man who had
and lot, she cannot claim to be the co-owner of the Riceland
legitimate children. A son was born out of that illicit
nor the exclusive owner of the house and lot. Such
relationship in 1981. Although the putative father did
properties are Mauricio’s. And since his share accrues to the
not recognize the child in his certificate of birth, he
conjugal partnership with Carol, Carol can validly claim
nevertheless provided the with child all the support he
such properties to the exclusion of Erlinda. (Art. 144, NCC)
needed and spent time regularly with the child and his
mother. When the man died in 2000, the child was
already 18 years old so he filed a petition to be
I. THE FAMILY recognized as an illegitimate child of the putative father
and sought to be given a share in his putative father's
estate. The legitimate family opposed, saying that
1. GENERAL PRINCIPLES under the Family Code his action cannot prosper
(2011 BAR) because he did not bring the action for recognition
during the lifetime of his putative father. (2015 BAR)

(a) If you were the judge in this case, would how

J. FAMILY HOME
(2014, 2011 BAR)
1. GENERAL PRINCIPLES
(2014 BAR)
Q: On 30 Mar. 2000, Mariano died intestate and was
survived by his wife, Leonora, and children, Danilo and
Carlito. One of the properties he left was a piece of land
in Alabang where he built his residential house.
After his burial, Leonora and Mariano’s children
extrajudicially settled his estate. Thereafter, Leonora
and Danilo advised Carlito of their intention to
you rule?
A: If I were the judge, I will not allow the action for
recognition filed after the death of the putative father.
Under the Family Code, an illegitimate child who has not
been recognized by the father in the record of birth, or in a
private handwritten instrument, or in a public document
and may prove his filiation based on open and continuous
possession of the status of an illegitimate child but pursuant
to Article 175, he or she must file the action for recognition
during the lifetime of the putative father. The provision of
Article 285 of the Civil Code allowing the child to file the
action for recognition even after the death of the father will
not apply because in the case presented, the child was no

43 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
longer a minor at the time of death of the putative father.
(b) Wishing to keep the peace, the child during the
pendency of the case decides to compromise
with his putative father's family by abandoning
his petition in exchange for Yi of what he would
have received as inheritance if he were
recognized as an illegitimate child. As the judge,
would you approve such a compromise?
A: NO, I will not approve the compromise agreement
because filiation is a matter to be decided by law. It is not
for the parties to stipulate whether a person is a legitimate
or illegitimate child of another. (De Jesus v. Estate of Dizon,
G.R. No. 142877, 02 Oct. 2001) In all cases of illegitimate
children, their filiation must be duly proved. (Art. 887, NCC)
ALTERNATIVE ANSWER:
YES, I would approve the compromise because it is no
longer considered future inheritance. What the law
prohibits is a compromise with respect to future
legitime. In this case, the father is already dead so the
compromise is considered valid. (Bar Q&A by Paguirigan,
2015)
2. LEGITIMATE CHILDREN
(2012, 2011, 2010, 2009, 2008, 2006, 1990 BAR)
a) WHO ARE LEGITIMATE CHILDREN
(2011, 2010, 2009, 2008 BAR)
Arthur and Helen, both Filipinos, got married and had 2
children. Arthur later worked in Rome where he
acquired Italian citizenship. He got a divorce from
Helen in Rome but, on returning to the Philippines, he
realized his mistake, asked forgiveness of his wife, and
resumed living with her. They had 2 more children.
What is the status of their 4 children? (2011 BAR)
A) The children born before the divorce are
legitimate but those born after it are not since
Arthur got the divorce when he had ceased to be
a Filipino.
B) The divorce rendered illegitimate the children
born before it since the marriage that begot
them had been nullified.
C) The children born before and after the divorce
are all legitimate since Philippine law does not
recognize divorce.
D) All the children are legitimate since they were
born of the same father and mother.
A: A. (UPLC Suggested Answers)
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2023 GOLDEN NOTES
Q: Two (2) months after the death of her husband who
was shot by unknown criminal elements on his way
home from office, Rose married her childhood
boyfriend, and 7 months after said marriage, she
delivered a baby. In the absence of any evidence from
Rose as to who is her child's father, what status does the
law give to said child? Explain. (1999 BAR)
A: The child is legitimate of the second marriage under Art.
168(2), FC which provides that a “child born after one
hundred eighty days following the celebration of the
subsequent marriage is considered to have been conceived
during such marriage, even though it be born within three
hundred days after the termination of the former marriage.”
b) PROOF OF FILIATION OF LEGITIMATE CHILDREN
(2012, 2011, 2008 BAR)
The husband may impugn the legitimacy of his child but
not on the ground that: (2012 BAR)
A) the wife is suspected of infidelity.
B) the husband had a serious illness that
prevented him from engaging in sexual
intercourse.
C) they were living apart.
D) he is physically incapable of sexual intercourse.
A: A. (UPLC Suggested Answers)
Q: An illegitimate child may use the surname of his
father when his filiation is established in any of the
following instances, except: (2012 BAR)
A) Filiation has been recognized by the father
through the record of birth appearing in the
civil register
B) Admission of filiation by the father in a public
document.
C) Private handwritten instrument is made by the
father acknowledging his filiation.
D) Affidavit by the mother stating the name of his
true father.
A: D. (UPLC Suggested Answers)
Q: Roderick and Faye were high school sweethearts.
When Roderick was 18 and Faye, 16 years old, they
started to live together as husband and wife without the
benefit of marriage. When Faye reached 18 years of age,
her parents forcibly took her back and arranged for her
marriage to Brad. Although Faye lived with Brad after
the marriage, Roderick continued to regularly visit
Faye while Brad was away at work. During their
marriage, Faye gave birth to a baby girl, Laica. When
Faye was 25 years old, Brad discovered her continued
liaison with Roderick and in one of their heated
arguments, Faye shot Brad to death. She lost no time in
marrying her true love Roderick, without a marriage
license, claiming that they have been continuously
44
 QuAMTO (1987-2022)
cohabiting for more than 5 years. (2008 BAR)
(a) What is the filiation status of Laica?
A: Having been born during the marriage of Faye and Brad,
she is presumed to be the legitimate child of Faye and Brad.
This presumption had become conclusive because the
period of time to impugn her filiation had already
prescribed.
(b) Can Laica bring an action to impugn her own
status on the ground that based on DNA
results, Roderick is her biological father?
A: NO, she cannot impugn her own filiation. The law does
not allow a child to impugn his or her own filiation. In the
problem, Laica’s legitimate filiation was accorded to her by
operation of law which may be impugned only by Brad, or
his heirs in the cases provided by law within the
prescriptive period.
c) RIGHTS OF LEGITIMATE CHILDREN
(2009, 1990 BAR)
Q: Four children, namely: Alberto, Baldomero, Caridad,
and Dioscoro, were born to the Sps. Conrado and Clarita
de la Costa. The children’s birth certificates were duly
signed by Conrado, showing them to be the couple’s
legitimate children. Later, one Edilberto de la Cruz
executed a notarial document acknowledging Alberto
and Baldomero as his illegitimate children with Clarita.
Edilberto died leaving substantial properties. In the
settlement of his estate, Alberto and Baldomero
intervened claiming shares as the deceased’s
illegitimate children. The legitimate family of Edilberto
opposed the claim.
Are Alberto and Baldomero entitled to share in the
estate of Edilberto? Explain. (2009 BAR)
A: NO, Alberto and Baldomero are not entitled to share in
Edilberto’s estate. They are not related at all to Edilberto.
They were born during the marriage of Conrado and Clarita,
hence, are considered legitimate children of the said
spouses. This status is conferred on them at birth by law.
Under Philippine law, a person cannot have more than one
natural filiation. The legitimate filiation of a person can be
changed only if the legitimate father will successfully
impugn such status.
In the problem, therefore, the filiation of Alberto and
Baldomero as the legitimate children of Conrado cannot be
changed by their recognition by Edilberto as his illegitimate
children. Before they can be conferred the status of
Edilberto’s illegitimate children, Conrado must first impugn
their legitimacy. Since Conrado has not initiated any action
to impugn their legitimacy, they continue to be the
legitimate children of Conrado. They cannot be the
illegitimate children of Edilberto at the same time. Not being
the illegitimate children of Edilberto, they have no right to
45
inherit from him.
Q: B and G (college students, both single and not
disqualified to marry each other) had a romantic affair.
G was seven months in the family way as of the
graduation of B. Right after graduation B went home to
Cebu City. Unknown to G, B had a commitment to C (his
childhood sweetheart) to marry her after getting his
college degree. Two weeks after B’s marriage in Cebu
City, G gave birth to a son E in Metro Manila.
After 10 years of married life in Cebu, B became a
widower by the sudden death of C in a plane crash. Out
of the union of B and C, two children, X and Y, were born.
Unknown to C, while on weekend trips to Manila during
the last 5 years of their marriage, B invariably visited G
and lived at her residence and as a result of which, they
renewed their relationship. A baby girl F was born to B
and G two years before the death of C. Bringing his
family later to Manila, B finally married G. Recently, G
died.
What are the rights of B’s four children: X and Y of his
first marriage; and E and F, his children with G? Explain
your answer. (1990 BAR)
A: Under the facts stated, X and Y are legitimate children of
B and G. E is the legitimate children of B and G. E is the
legitimated child of B and G. F is the illegitimate child of B
and C as legitimate children of B and C, X and Y have the
following rights:
1) To bear the surnames of the father and the mother, in
conformity with the provisions of the NCC on
surnames;
2) To receive support from their parents, their
ascendants, and in proper cases, their brothers and
sisters, in conformity with the provisions of the FC on
Support; and
3) To be entitled to the legitime and other successional
rights granted to them by the NCC. (Art. 174, FC) E is
the legitimated child of B and G. Under Art. 177, FC,
only children conceived and born outside of wedlock
of parents who, at the time of the conception of the
former, were not disqualified by any impediment to
marry each other may be legitimated. E will have the
same rights as X and Y. F is the illegitimate child of B
and G. F has the right to use the surname of G, her
mother, and is entitled to support as well as the
legitime consisting of 1/2 of that of each of X, Y, and E.
(Art. 176, FC)
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 CIVIL LAW
d) GROUNDS TO IMPUGN LEGITIMACY
(2018, 2010, 2008, 2006 BAR)
Q: After finding out that his girlfriend Sandy was 4
months pregnant, Sancho married Sandy. Both were
single and had never been in any serious relationship
in the past. Prior to the marriage, they agreed in a
marriage settlement that the regime of conjugal
partnership of gains shall govern their property
relations during marriage. Shortly after the marriage,
their daughter, Shalimar, was born.
Before they met and got married, Sancho purchased a
parcel of land on installment, under a Contract of Sale,
with the full purchase price payable in equal annual
amortizations over a period of 10 years, with no down
payment, and secured by a mortgage on the land. The
full purchase price was PhP 1million, with interest at
the rate of 6% per annum. After paying the fourth
annual installment, Sancho and Sandy got married, and
Sancho completed the payments in the subsequent
years from his salary as an accountant. The previous
payments were also paid out of his salary. During their
marriage, Sandy also won PhP1million in the lottery
and used it to purchase jewelry. When things didn’t
work out for the couple, they filed an action for
declaration of nullity of their marriage based on the
psychological incapacity of both of them. When the
petition was granted, the parcel of land and the jewelry
bought by Sandy were found to be the only properties
of the couple.
What is the filiation status of Shalimar? (2018 BAR)
A: Shalimar is a legitimate child. Children conceived or born
before the judgment of absolute nullity of the marriage
because of psychological incapacity under Art. 36 has
become final and executory shall be considered legitimate.
(Art. 54, FC) Since Shalimar was born before the judgment
granting the petition for declaration of absolute nullity of
marriage of Sancho and Sandy under Art. 36 became final
and executory. Shalimar is a legitimate child.
Q: Sps. B and G begot two offsprings. Albeit they had
serious personality differences, the spouses continued
to live under one roof. B begot a son by another woman.
G also begot a daughter by another man. (2010 BAR)
(a) If G gives the surname of B to her daughter by
another man, what can B do to protect their
legitimate children's interests? Explain.
A: B can impugn the status of G's daughter by another man
as his legitimate daughter on the ground that for biological
reason he could not have been the father of the child, a fact
that may be proven by the DNA test. Having been born
during the marriage between B and G, G's daughter by
another man is presumed as the child of B under Art. 164,
FC. In the same action to impugn, B can pray for the
correction of the status of the said daughter in her record of
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
birth.
(b) If B acquiesces to the use of his surname by G’s
daughter by another man, what is/are the
consequence/s? Explain.
A: If B acquiesces and does not file the action to impugn the
legitimacy of the child within the prescriptive period for
doing so under Art. 170, FC, G's daughter by another man
shall be conclusively presumed as the legitimate daughter
of B by G.
Q: Ed and Beth have been married for 20 years without
children. Desirous to have a baby, they consulted Dr.
Jun Canlas, a, prominent medical specialist on human
fertility. He advised Beth to undergo artificial
insemination. It was found that Ed’s sperm count was
inadequate to induce pregnancy. Hence, the couple
looked for a willing donor. Andy the brother of Ed,
readily consented to donate his sperm. After a series of
test, Andy's sperm was medically introduced into
Beth's ovary. She became pregnant and 9 months later,
gave birth to a baby boy, named Alvin. (2006 BAR)
(a) Who is the Father of Alvin? Explain.
A: Ed is the father of Alvin because Alvin was conceived and
born during the marriage of his mother to Ed. Under the
law, the child born during the marriage of the mother to her
husband is presumed to be the legitimate child of the
husband. (Concepcion v. Almonte, G.R. NO. 123450, 31 Aug.
2005) While it is true that there was no written consent by
the husband to the artificial insemination, absence of such
consent may only give the husband a ground to impugn the
legitimacy of the child but will not prevent the child from
acquiring the status of legitimate child of the husband at the
time of its birth.
(b) What are the requirements, if any, in order
for Ed to establish his paternity over Alvin?
A: To establish Ed’s paternity over Alvin, only two
requirements must concur: (1) the fact that Ed and the
mother of Alvin are validly married, and (2) the fact that
Alvin was conceived or born during the subsistence of such
marriage.
46
 QuAMTO (1987-2022)
3. ILLEGITIMATE CHILDREN license. Is Venus legitimate, illegitimate, or
(2018, 2015, 2012, 2011, 2010, 2009, 2008, 2006, legitimated? Explain briefly. (2010 BAR)
2005, 1999, 1996, 1995 BAR)
A: Venus is illegitimate. She was conceived and born outside
a valid marriage. Thus, she is considered illegitimate. (Art
a) WHO ARE ILLEGITIMATE CHILDREN
165, FC) While Venus was legitimated by the subsequent
(2018, 2012, 2010, 2005 BAR)
marriage of her parents, such legitimation was rendered
ineffective when the said marriage was later on declared
Q: Sinclair and Steffi had an illicit relationship while
null and void due to absence of a marriage license.
Sinclair was married to another. The relationship
produced a daughter Sabina, who grew up with her
Under Art. 178, FC, “legitimation shall take place by a
mother. For most parts of Sabina’s youth, Steffi spent
subsequent valid marriage between parents. The
for her support and education. When Sabina was 21
annulment of a voidable marriage shall not affect the
years old, Sinclair’s wife of many years died. Sinclair
legitimation.” The inclusion of the underscored portion in
and Steffi lost no time in legitimizing their relationship.
the Article necessarily implies that the Article's application
After the 40-day prayers for Sinclair’s late wife, Sinclair
is limited to voidable marriages. It follows that when the
and Steffi got married without a marriage license,
subsequent marriage is null or void, the legitimation must
claiming that they have been cohabiting for the last 20
also be null and void. In the present problem, the marriage
years. After graduating from college, Sabina decided to
between B and G was not voidable but void. Hence, Venus
enroll in law school. Sinclair said that he was not willing
has remained an illegitimate child.
to pay for her school fees since she was no longer a
minor. Sinclair claimed that if Sabina wanted to be a
Q: In 1985, Sonny and Lulu, both Filipino citizens, were
lawyer, she had to work and spend for her law
married in the Philippines. In 1987, they separated, and
education. (2018 BAR)
Sonny went to Canada, where he obtained a divorce in
the same year. He then married another Filipina,
(a) What is Sabina’s filiation status?
Auring, in Canada on 01 Jan. 1988. They had two sons,
James and John. In 1990, after failing to hear from
A: Sabina is an illegitimate child of Sinclair and Steffi
Sonny, Lulu married Tirso, by whom she had a
because she was conceived and born outside a valid
daughter, Verna. In 1991, Sonny visited the Philippines
marriage. (Art. 165, FC) She was not legitimated by the
where he succumbed to heart attack. Explain the
subsequent marriage between Sinclair and Steffi. Only
respective filiation of James, John and Verna. (2005
children conceived and born outside of wedlock of parents
BAR)
who, at the time of conception of the former, were not
disqualified by any impediment to marry each other may be
A: James and John are the illegitimate children of Sonny and
legitimated. (Art. 177, FC) At the time of Sabina’s conception,
Auring because they were conceived and born outside a
her parents were disqualified by an impediment to marry
valid marriage. Verna is an illegitimate child of Lulu and
each other, because Sinclair was married to someone else.
Tirso having been conceived and born to the invalid
marriage of Lulu and Tirso. Verna cannot be presumed as
(b) Is Sinclair legally required to finance Sabina’s law
the legitimate child of Sonny because of the supervening
education?
marriage that was celebrated between Lulu and Tirso even
though such marriage is void ab initio. The case of Liyao v.
A: YES, he is legally required to finance Sabina’s education.
Liyao (G.R. No. 138961, 07 Mar. 2002) is not applicable
Support comprises everything indispensable for education
because in that case the wife begot a child by another man
among other things in keeping with the financial capacity of
during her marriage to her estranged husband, but no
the family. The education of the person entitled to be
marriage was celebrated between the wife the father of the
supported shall include his schooling or training for some
child. The child in that case was presumed to be the
profession even beyond the age of majority. (Art. 194, FC)
legitimate child of the estranged husband.
Parents and their illegitimate children are obliged to
support each other. (Art. 195, FC) Considering the foregoing
b) PROOF OF FILIATION OF ILLEGITIMATE CHILDREN
rules, Sinclair is enjoined by law to finance Sabrina’s law
(2015, 2011, 2005, 1999, 1995 BAR)
education even beyond the age of majority. (UPLC Suggested
Answers)
Q: Steve was married to Linda, with whom he had a
daughter, Tintin. Steve fathered a son with Dina, his
Q: In 1997, B and G started living together without the
secretary of 20 years, whom Dina named Joey, born on
benefit of marriage. The relationship produced one
20 Sept. 1981. Joey’s birth certificate did not indicate
offspring, Venus. The couple acquired a residential lot
the father's name. Steve died on 13 Aug. 1993, while
in Parañaque. After four (4) years or in 2001, G having
Linda died on 03 Dec. 1993, leaving their legitimate
completed her 4-year college degree as a fulltime
daughter, Tintin, as sole heir. On 16 May 1994, Dina
student, she and B contracted marriage without a
filed a case on behalf of Joey, praying that the latter be
license. The marriage of B and G was, two years later,
declared an acknowledged illegitimate son of Steve and
declared null and void due to the absence of a marriage

47 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
that Joey be given his share in Steve's estate, which is
now being solely held by Tintin. Tintin put up the
defense that an action for recognition shall only be filed
during the lifetime of the presumed parents and that
the exceptions under Art. 285 of the NCC do not apply to
him since the said article has been repealed by the
Family Code. In any case, according to Tintin, Joey's
birth certificate does not show that Steve is his father.
(2005 BAR)
(a) Does Joey have a cause of action against Tintin
for recognition and partition? Explain.
A: YES, Joey has a cause of action against Tintin. While the
FC has repealed the provisions of the NCC on proof of
filiation, said repeal did not impair vested rights. Joey was
born an illegitimate child in 1981. As an illegitimate child,
he had acquired, at birth, the right to prove his filiation in
accordance with the provisions of the NCC in force at that
time. Under the NCC, an illegitimate child may file an action
to compel his recognition even after the death of the
putative father when the father died during the minority of
the child. While the FC has repealed this provision, it will
not operate to prejudice Joey who has already acquired a
vested right thereto.
(b) Are the defenses set up by Tintin tenable?
A: The defenses of Tintin are not tenable. The fact that Joey’s
birth certificate does not show that Steve was his father is
of no moment. The law does not require such mention.
Besides, the NCC provides that when the father did not sign
the birth certificate, his name should not be disclosed
therein. While it is true that capacity to inherit is
determined at the time of the death of the decedent and that
filiation is an element of capacity to inherit, filiation is
determined not at the time of the death of the decedent but
at the time of the birth of the child who is born with a status.
Such status may subsequently change such as in
legitimation, but legitimation is deemed to retroact to the
time of birth. In the same manner, recognition when given
voluntarily by the father, or decreed by the court, retroacts
to the time of the child’s birth.
(c) Supposing that Joey died during the pendency
of the action, should the action be dismissed?
Explain.
A: If Joey filed the action and died when the NCC was still in
force, his action would be dismissed because the action was
not transmissible to the heirs of the illegitimate child.
(Conde v. Abaya, G.R. No. 4275, March 23, 1909) But if the
action was filed after effectivity of the FC, and Joey died
during the pendency of the action for recognition, it should
not be dismissed. Under the present FC, an action
commenced by a legitimate child to claim his legitimate
filiation is not extinguished by his death. The FC makes this
provision applicable to the action for recognition filed by an
illegitimate child. Joey has the right to invoke this provision
because it does not impair any vested rights. (Art. 175, FC)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
Q: Abraham died intestate on 07 Jan. 1994 survived by
his son Braulio. Abraham's older son Carlos died on 14
Feb. 1990. Danilo who claims to be an adulterous child
of Carlos intervenes in the proceedings for the
settlement of the estate of Abraham in representation
of Carlos. Danilo was legally adopted on 17 Mar. 1970
by Carlos with the consent of the “latter's wife.” (1999,
1995 BAR)
(a) Under the Family Code, how may an illegitimate
filiation be proved? Explain.
A: Under Art. 172, in relation to Art. 173 and Art. 175 of the
FC, the filiation of illegitimate children may be established
in the same way and by the same evidence as legitimate
children. Art. 172 provides that the filiation of legitimate
children is established by any of the following: (1) the
record of birth appearing in the civil register or a final
Judgment; or (2) an admission of legitimate filiation in a
public document or a private handwritten instrument and
signed by the parent concerned. In the absence of the
foregoing evidence, the legitimate filiation shall be proved
by: (1) the open and continuous possession of the status of
a legitimate child; or (2) any other means allowed by the
Rules of Court and special laws.
(b) As lawyer for Danilo, do you have to prove
Danilo’s illegitimate filiation? Explain.
A: NO. Since Danilo has already been adopted by Carlos, he
ceased to be an illegitimate child. An adopted child acquires
all the rights of a legitimate child under Art, 189 of the FC.
Q: Nestor is the illegitimate son of Dr. Perez. When Dr.
Perez died, Nestor intervened in the settlement of his
father's estate, claiming that he is the illegitimate son of
said deceased, but the legitimate family of Dr. Perez is
denying Nestor's claim. What evidence or pieces of
evidence should Nestor present so that he may receive
his rightful share in his father's estate? (1999 BAR)
A: To be able to inherit, the illegitimate filiation of Nestor
must have been admitted by his father in any of the
following:
1. The record of birth appearing in the civil register,
2. A final judgment,
3. A public document signed by the father, or
4. A private handwritten document signed by the
latter. (Art. 175, in relation to Art. 172, FC)
c) RIGHTS OF ILLEGITIMATE CHILDREN
(2012, 2010, 2009, 2006, 1996 BAR)
Q: Honorato filed a petition to adopt his minor
illegitimate child Stephanie, alleging that Stephanie’s
mother is Gemma Astorga Garcia; that Stephanie has
been using her mother’s middle name and surname;
and that he is now a widower and qualified to be her
adopting parent. He prayed that Stephanie’s middle
name be changed from “Astorga” to “Garcia,” which is
48
 QuAMTO (1987-2022)
her mother’s surname and that her surname “Garcia”
be changed to “Catindig,” which is his surname. This the
trial court denied. Was the trial court correct in denying
Hororato’s request for Stephanie’s use of her mother’s
surname as her middle name? Explain. (2012, 1996
BAR)
A: NO, the trial court was not correct. There is no law
prohibiting an illegitimate child adopted by his natural
father to use as middle name his mother's surname. The law
is silent as to what middle name an adoptee may use. In the
case of In re: Adoption of Stephanie Nathy Astorga Garcia
(G.R. No, 148311, 31 Mar. 2005), the Supreme Court ruled
that the adopted child may use the surname of the natural
mother as his middle name because there is no prohibition
in the law against it. Moreover, it will also be for the benefit
of the adopted child who shall preserve his lineage on his
mother’s side and reinforce his right to inherit from his
mother and her family. Lastly, it will make the adopted child
conform with the time-honored Filipino tradition of
carrying the mother’s surname as the person’s middle
name.
Q: Gigolo entered into an agreement with Majorette for
her to carry in her womb his baby via in vitro
fertilization. Gigolo undertook to underwrite
Majorette’s pre-natal expenses as well as those
attendant to her delivery. Gigolo would thereafter pay
Majorette P2 million and, in return, she would give
custody of the baby to him.
After Majorette gives birth and delivers the baby to
Gigolo following her receipt of P2 million, she engages
your services as her lawyer to regain custody of the
baby. Is the child entitled to support and inheritance
from Gigolo? Explain. (2010 BAR)
A: If Gigolo voluntarily recognized the child as his
illegitimate child in accordance with Art. 175 in relation to
Art. 172 of the FC, the child is entitled to support and
inheritance from Gigolo.
Q: Rodolfo, married to Sharon, had an illicit affair with
his secretary, Nanette, a 19-year-old girl, and begot a
baby girl, Rona. Nanette sued Rodolfo for damages:
actual, for hospital and other medical expenses in
delivering the child by caesarean section; moral,
claiming that Rodolfo promised to marry her,
representing that he was single when, in fact, he was
not; and exemplary, to teach a lesson to like-minded
Lotharios. (2009 BAR)
(a) Suppose Rodolfo later on acknowledges Rona
and gives her regular support, can he compel
her to use his surname? Why or why not?
A: NO. He has no right to compel Rona to use his surname.
The law does not give him the right simply because he gave
her support. (R.A. No. 9255) Under the FC, an illegitimate
child was required to use only the surname of the mother.
49
Under R.A. No. 9255 (An Act Allowing Illegitimate Children
To Use The Surname Of Their Father, Amending For The
Purpose Art. 176 Of Executive Order No. 209, Otherwise
Known As The “Family Code Of The Philippines”), otherwise
known as the Revilla law, however, the illegitimate child is
given the option to use the surname of the illegitimate
father when the latter has recognized the former in
accordance with law. Since the choice belongs to the
illegitimate child, Rodolfo cannot compel Rona, if already of
age, to use the surname against her will. If Rona is still a
minor, to use the surname of Rodolfo will require the
consent of Rona's mother who has sole parental authority
over her.
(b) When Rona reaches 7 years old, she tells
Rodolfo that she prefers to live with him,
because he is better off financially than Nanette.
If Rodolfo files and action for the custody of
Rona, alleging that he is Rona’s choice as
custodial parent, will the court grant Rodolfo’s
petition? Why or why not?
A: NO, because Rodolfo has no parental authority over
Rona. He who has the parental authority has the right to
custody. Under the Family Code, the mother alone has
parental authority over the illegitimate child. This is true
even if the illegitimate father has recognized the child and
even though he is giving support for the child. To acquire
custody over Rona, Rodolfo should first deprive Nanette of
parental authority if there is a ground under the law, and in
a proper court proceeding. In the same action, the court may
award custody of Rona to Rodolfo if it is for her best
interest.
Q: May an illegitimate child, upon adoption by her
natural father, use the surname of her natural mother
as the middle name? (2006 BAR)
A: YES, an illegitimate child, upon adoption by her natural
father, can use the surname of her natural mother as her
middle name. The Court has ruled that there is no law
prohibiting an illegitimate child adopted by her natural
father to use, as middle name, her mother's surname. What
is not prohibited is allowed. After all, the use of the maternal
name as the middle name is in accord with Filipino culture
and customs and adoption is intended for the benefit of the
adopted. (In Re: Adoption of Stephanie Nathy Astorga Garcia,
G.R. No. 148311, 31 Mar. 2005)
d) GROUNDS TO IMPUGN FILIATION
(2011, 2010, 2008 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
4. LEGITIMATED CHILDREN Assuming that Aimee is successful in declaring her
(2011, 2008 BAR) former marriage void, and Andy and Aimee
subsequently married each other, would Gianna be
legitimated? (2008 BAR)
a) WHO MAY BE LEGITIMATED
(2011, 2009, 2008 BAR)
A: NO, Gianna will not be legitimated. While the court may
have declared the marriage void ab initio and therefore, no
Q: True or False. A dead child can be legitimated. (2009
marriage took place in the eyes of the law, Gianna will still
BAR)
not be legitimated. This is because at the time she was
conceived and born her biological parents could not have
A: TRUE. To be legitimated, the law does not require a child
validly married each other. For their marriage to be valid,
to be alive at the same time of the marriage of his or her
the court must first declare the first marriage null and void.
parents. (Art. 177, FC) Furthermore, Art. 181 of the FC which
In the problem, Gianna was conceived and born before the
states that “The legitimation of children who died before the
court has decreed the nullity of her mother’s previous
celebration of marriage will benefit their descendants,”
marriage.
does not preclude instances where such legitimation will
benefit no one but the child's ascendants, or other relatives.
Q: RN and DM, without any impediment to marry each
other, had been living together without benefit of
Q: Roderick and Faye were high school sweethearts.
church blessings. Their common-law union resulted in
When Roderick was 18 and Faye, 16 years old, they
the birth of ZMN. Two years later, they got married in a
started to live together as husband and wife without the
civil ceremony. Could ZMN be legitimated? Reason.
benefit of marriage. When Faye reached 18 years of age,
(2004 BAR)
her parents forcibly took her back and arranged for her
marriage to Brad. Although Faye lived with Brad after
A: ZMN was legitimated by the subsequent marriage of RN
the marriage, Roderick continued to regularly visit
and DM because at the time he was conceived, RN and DM
Faye while Brad was away at work. During their
could have validly married each other. Under the Family
marriage, Faye gave birth to a baby girl, Laica. When
Code children conceived and born outside of wedlock of
Faye was 25 years old, Brad discovered her continued
parents who, at the time of the former's conception, were
liaison with Roderick and in one of their heated
not disqualified by any impediment to marry each other are
arguments, Faye shot Brad to death. She lost no time in
legitimated by the subsequent marriage of the parents
marrying her true love Roderick, without a marriage
license, claiming that they have been continuously
c) GROUNDS TO IMPUGN LEGITIMACY
cohabiting for more than 5 years.

Can Laica be legitimated by the marriage of her 5. ADOPTED CHILDREN

biological parents? (2008 BAR)
A: NO, she cannot be legitimated by the marriage of her
biological parents. In the first place she is not, under the law,
the child of Roderick, in the second place, her biological
parents could not have validly married each other at the
time she was conceived and born simply because Faye was
still married to Roderick at that time. Under Art. 177, FC,
only children conceived or born outside of wedlock of
parents who, at the time of the conception of the child were
not disqualified by any impediment to marry each other,
may be legitimated.
b) HOW LEGITIMATION TAKES PLACE
(2008, 2004 BAR)
Q: Gianna was born to Andy and Aimee, who at the time
Gianna's birth were not married to each other. While
Andy was single at the time, Aimee was still in the
process of securing a judicial declaration of nullity on
her marriage to her ex-husband. Gianna's birth
certificate, which was signed by both Andy and Aimee,
registered the status of Gianna as “legitimate,” her
surname carrying that of Andy's and that her parents
were married to each other.
Q: A German couple filed a petition for adoption of a
minor Filipino child with the RTC of Makati under the
provisions of the Child and Youth Welfare Code which
allowed alien to adopt. Before the petition could be
heard, the Family Code, which repealed the Child and
Youth Welfare Code, came into effect. Consequently, the
Solicitor General filed a motion to dismiss the petition,
on the ground that the Family Code prohibits aliens
from adopting. If you were the judge, how will you rule
on the motion? (2001 BAR)
A: The motion to dismiss the petition for adoption should
be denied. The law that should govern the action is the law
in force at the time of filing of the petition. At that time, it
was the Child and Youth Welfare Code that was in effect, not
the FC. Petitioners have already acquired a vested right on
their qualification to adopt which cannot be taken away by
the Family Code. (Republic v. Miller, G.R. No. 125932, 21 Apr.
1999, citing Republic v. Court of Appeals, G.R. No. 92326, 24
Jan. 1992)

U N I V E R S IT Y O F S A N T O T O M A S 50
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
a) DOMESTIC ADMINISTRATIVE ADOPTION AND
ALTERNATIVE CHILD CARE ACT
R.A. No. 11642
Q: Sps. Rex and Lea bore two children now aged 14 and
8. During the subsistence of their marriage, Rex begot a
child by another woman. He is now 10 years of age. On
Lea’s discovery of Rex’s fathering a child by another
woman, she filed a petition for legal separation which
was granted. Rex now wants to adopt his illegitimate
child. (2010 BAR)
(a) Whose consent is needed for Rex’s adoption of his
illegitimate child?
A: The consent of the 14-year-old legitimate child, of the 10-
year-old illegitimate child and of the biological parents of
the illegitimate child are needed for the adoption.
Under the Domestic Administrative Adoption and
Alternative Child Care Act (R.A. No. 11642), the following are
necessary to give their consent to the adoption:
(1) the adoptee, if 10 years of age or over;
(2) the biological parents of the child, if known, or the
legal guardian, or the proper government
instrumentality which has legal custody of the
child, except in the case of a Filipino of legal age if,
prior to the adoption, said person has been
consistently considered and treated as their own
child by the adopters for at least 3 years;
(3) The legitimate and adopted children, 10 years of
age or over, of the adopters, if any;
(4) The illegitimate children, 10 years of age or over, of
the adopter if living with said adopter or over
whom the adopter exercises parental authority and
the latter’s spouse, if any; and
(5) The spouse, if any, of the person adopting or to be
adopted. (Sec. 23, R.A. 11642)
Since Rex and Lea are legally separated, her consent is no
longer necessary. Therefore, only the consent of the 14-
year-old legitimate child, the 10-year-old illegitimate child
and of the biological parents or legal guardian of the
illegitimate child are needed for the adoption.
(b) If there was no legal separation, can Rex still
adopt his illegitimate child? Explain.
A: YES, he can still adopt his illegitimate child but with the
consent of his spouse, of his 14-year-old legitimate child of
the illegitimate child, and of the biological mother of the
illegitimate child. As a general rule, spouses shall jointly
adopt except if the spouses are legally separated from each
other. (Sec. 21(e)(4)(c))
Q: Hans Berber, a German national, and his Filipino
wife, Rhoda, are permanent residents of Canada. They
desire so much to adopt Magno, an 8-year-old orphaned
boy and a baptismal godson of Rhoda. Since the
accidental death of Magno's parents in 2004, he has
51
been staying with his aunt who, however, could hardly
afford to feed her own family. Unfortunately, Hans and
Rhoda cannot come to the Philippines to adopt Magno
although they possess all the qualifications as adoptive
parents.
Is there a possibility for them to adopt Magno? How
should they go about it? (2005 BAR)
A: Under R.A. No. 8043, the rules for inter-country adoption
of Filipino children, the spouses may file an application to
adopt a Filipino child with the Inter-Country Adoption
Board (ICAB) after they have been determined eligible and
fit to adopt by the State Welfare Agency or a licensed
adoption agency in Canada. The Canadian agency will
forward the required supporting documents to the ICAB for
matching with a Filipino child. The spouses, after filing a
petition with the ICAB, shall be issued the Placement
Authority and when all the travel documents of the child
who is declared legally eligible for adoption as determined
by the ICAB are ready the adoptive parents or any one of
them shall personally fetch the child in the Philippines for
adoption in the court of the foreigner’s country.
Q: In 1984, Eva, a Filipina, went to work as a nurse in the
USA. There, she met and fell in love with Paul, an
American citizen, and they got married in 1985. Eva
acquired American citizenship in 1987. During their
sojourn in the Philippines in 1990, they filed a joint
petition for the adoption of Vicky, a 7-year-old daughter
of Eva's sister. The government, through the OSG,
opposed the petition on the ground that the petitioners,
being both foreigners, are disqualified to adopt Vicky.
(2005, 2003, 2000 BAR)
(a) Is the government's opposition tenable?
Explain.
A: YES, the position of the government is tenable.
Foreigners are disqualified to adopt unless they fall in any
of the exceptions provided for in the law. Eva and Paul are
both foreigners. Eva, Falls in one of the exceptions. She is
qualified to adopt because she is a former Filipino citizen
who wishes to adopt a relative by consanguinity.
Unfortunately, Paul is not qualified to adopt because he
does not fall in any of the exceptions. Hence, they cannot
adopt jointly. When husband and wife are adopting jointly,
both of them must be qualified to adopt in their own right
Eva cannot, alone by herself, adopt her niece because
husband and wife must adopt jointly unless they fall in any
of the exceptions provided for in the law. They cannot adopt
separately because they do not fall in any of the exceptions.
Hence, whether separately or jointly, Eva and Paul cannot
adopt Vicky in the Philippines. (Domestic Adoption Law, R.A.
No. 8552)
(b) Would your answer be the same if they sought
to adopt Eva's illegitimate daughter? Explain.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: NO, my answer would be different. Eva is qualified to
adopt her illegitimate daughter, because she falls in one of
the exceptions that allow foreigners to adopt. She is a
former Filipino citizen adopting her relative by
consanguinity. Eva can adopt separately her illegitimate
child because her case is also an exception to the rule that
husband and wife should adopt jointly.
(c) Supposing that they filed the petition to adopt
Vicky in the year 2000, will your answer be the
same? Explain.
A: YES, my answer will be the same. The new Law on
Domestic Adoption allows a foreigner to adopt in the
Philippines if he has been residing in the Philippines for at
least 3 years prior to the filing of the petition unless the law
waives that residency requirement. Paul and Eva have not
resided in the Philippines for the last three (3) years.
However, Eva will qualify for waiver because she was a
former Filipino citizen who wishes to adopt a relative by
consanguinity within the fourth degree. Unfortunately, Paul
will not qualify to adopt because he does not fall in any of
the instances for waiver to apply. They cannot adopt jointly
because one of them is not qualified. Neither may Eva adopt
alone because she does not fall in any of the exceptions that
allow husband and wife to adopt separately.
Q: Lina, a former Filipina who became an American
citizen shortly after her marriage to an American
husband, would like to adopt in the Philippines, jointly
with her husband, one of her minor brothers. Assuming
that all the required consents have been obtained,
could the contemplated joint adoption in the Philippine
prosper? Explain. (2003 BAR)
A: YES, Lina and her American husband can jointly adopt a
minor brother of Lina because she and her husband are
both qualified to adopt. Lina, as a former Filipino citizen, can
adopt her minor brother under Sec. 7(b(i)) of R.A. 8552
(Domestic Adoption Act of 1998).
The alien husband can now adopt under Sec. 7(b) of R.A. No.
8552. The Supreme Court has held in several cases that
when husband and wife are required to adopt jointly, each
one of them must be qualified to adopt in his or her own
right. (Republic v. Toledano, G.R. No. 94147, 08 June 1994)
However, the American husband must comply with the
requirements of the law including the residency
requirement of three (3) years. Otherwise, the adoption will
not be allowed.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
b. WHO MAY ADOPT
Q: Under R.A. No. 8043, an adopter is required to be at
least ____ years old and ____ years older than the child to
be adopted at the time of the application unless the
adopter is the parent by nature of the child. (2012 BAR)
a) 30 and 15
b) 27 and 16
c) 50 and 10
d) 18 and 15
A: B. 27 and 16
N.B.: Under R.A. No. 11642, the minimum age requirement
for the adopter is now at least 25 years of age. and the 16-
year difference between the age of the adopter and the
adoptee may be waived when the adopter is:
(1) the biological parent of the adoptee; or
(2) the spouse of the adoptee’s parent. (Sec. 21(a), R.A.
No. 11642)
Q: Sps. Esteban and Maria decided to raise their two (2)
nieces, Faith and Hope, both minors, as their own
children after the parents of the minors died in a
vehicular accident. 10 years after, Esteban died. Maria
later on married her boss Daniel, a British national who
had been living in the Philippines for 2 years. With the
permission of Daniel, Maria filed a petition for the
adoption of Faith and Hope. She did not include Daniel
as her co-petitioner because for Maria, it was her
former husband Esteban who raised the kids. If you are
the judge, how will you resolve the petition? (2014
BAR)
A: If I were the judge, I would DISMISS THE PETITION for
adoption. The rule is that the husband and wife must jointly
adopt and there are only three recognized exceptions to
joint adoption by the husband and wife: 1) if one spouse
seeks to adopt the legitimate child of the other; 2) if one
spouse seeks to adopt his or her own illegitimate child; 3) if
the spouses are legally separated. The case of Maria and
Daniel does not appear to fall under any of the recognized
exceptions, accordingly the petition filed by the wife alone
should be dismissed. (Bar Q&A by Paguirigan)
Q: 18-year-old Filipina Patrice had a daughter out of
wedlock whom she named Laurie. At 26, Patrice
married American citizen John who brought her to live
with him in the United States of America. John at once
signified his willingness to adopt Laurie. Can John file
the petition for adoption? If yes, what are the
requirements? If no, why? (2010 BAR)
A: NO, John cannot file the petition to adopt alone. As a
general rule one who is married to a Filipino citizen and
seeks to adopt jointly with the spouse a relative within the
4th degree of consanguinity or affinity of the Filipino spouse
and the spouses shall jointly adopt except (1) if one spouse
seeks to adopt the legitimate child of the other; (2) If one
52
 QuAMTO (1987-2022)
spouse seeks to adopt own illegitimate child; or (3) If the
spouses are legally separated from each other. (Sec. 21(e),
R.A. No. 11642) In this case, John seeks to adopt the
illegitimate child of his spouse. However, he does not fall
under any of the exceptions. Therefore, John cannot file the
petition to adopt alone.
c) WHO MAY BE ADOPTED
Q: Sometime in 1990, Sarah, born a Filipino but by then
a naturalized American citizen, and her American
husband Tom, filed a petition in the RTC of Makati, for
the adoption of the minor child of her sister, a Filipina.
Can the petition be granted? (2000 BAR)
A: IT DEPENDS. If Tom and Sarah have been residing in the
Philippines for at least 3 years prior to the effectivity of R.A.
No. 8552, the petition may be granted because the American
husband is not qualified to adopt.
While the petition for adoption was filed in 1990, it was
considered refiled upon the effectivity of R.A. No. 8552, the
Domestic Adoption Act of 1998. This is the law applicable,
the petition being still pending with the lower court.
Under the Act, Sarah and Tom must adopt jointly because
they do not fall in any of the exceptions where one of them
may adopt alone. When husband and wife must adopt
jointly, the Supreme Court has held in a line of cases that
both of them must be qualified to adopt. While Sarah, an
alien, is qualified to adopt under Sec. 7(b)(1) of the Act for
being a former Filipino citizen who seeks to adopt a relative
within the fourth degree of consanguinity or affinity, Tom
an alien, is not qualified because he is neither a former
Filipino citizen, nor married to a Filipino. One of them not
being qualified to adopt their petition has to be denied.
However, if they have been residents of the Philippines
three years prior to the effectivity of the Act and continues
to reside here until the decree of adoption is entered, they
are qualified to adopt the nephew of Sara under Sec. 7(b)
thereof, and the petition may be granted.
d) EFFECTS OF A DECREE OF ADOPTION
Arts. 189-190 of the Family Code
Q: Sps. Primo and Monina Lim, childless, were
entrusted with the custody of two minor children, the
parents of whom were unknown. Eager of having
children of their own, the spouses made it appear that
they were the children’s parents by naming them
Michelle P. Lim and Michael Jude Lim. Subsequently,
Monina married Angel Olario after Primo’s death.
She decided to adopt the children by availing the
amnesty given under R.A. No. 8552 to those individuals
who simulated the birth of a child. She filed separate
petitions for the adoption of Michelle, then 25 years old
and Michael, 18. Both Michelle and Michael gave
consent to the adoption. The trial court dismissed the
petition and ruled that Monina should have filed the
53
petition jointly with her new husband. Monina, in a
Motion for Reconsideration argues that mere consent
of her husband would suffice and that joint adoption is
not needed, for the adoptees are already emancipated.
Is the trial court correct in dismissing the petitions for
adoption? Explain. (2012 BAR)
A: YES, the trial court was correct. At the time the positions
for adoptions were filed, petitioner had already remarried.
Under the law, husband and wife shall adopt jointly, except
in cases enumerated in the law. The adoption cases of
Michelle and James do not fall in any of the exceptions
provided in the law where a spouse is permitted to adopt
alone. Hence, Monina should adopt jointly with her husband
Angel. (Adoption of Michelle P. Lim, G.R. Nos. 168992-93, 21
May 2009)
c. WHO MAY BE ADOPTED
Q: Rafael, a wealthy bachelor, filed a petition for the
adoption of Dolly, a one-year-old foundling who had a
severe heart ailment. During the pendency of the
adoption proceedings, Rafael died of natural causes.
The Office of the Solicitor General files a motion to
dismiss the petition on the ground that the case can no
longer proceed because of the petitioner’s death. (2009
BAR)
(a) Should the case be dismissed? Explain.
A: It depends on the stage of the proceedings when Rafael
died. If he died after all the requirements under the law have
been complied with and the case is already submitted for
resolution, the court may grant the petition and issue a
decree of adoption despite the death of the adopter. (Sec. 13,
R.A. No. 8552) Otherwise, the death of the petitioner shall
have the effect terminating the proceedings.
(b) Will your answer be the same if it was Dolly
who died during the pendency of the adoption
proceedings? Explain.
A: NO, if it was Dolly who died, the case should be dismissed.
Her death terminates the proceedings. (Art. 13, R.A. No.
8552)
Q: Despite several relationships with different women,
Andrew remained unmarried. His first relationship
with Brenda produced a daughter, Amy, now 30 years
old. His second, with Carla, produced two sons: Jon and
Ryan. His third, with Elena, bore him no children
although Elena has a daughter Jane, from a previous
relationship. His last, with Fe, produced no biological
children but they informally adopted without court
proceedings, Sandy's now 13 years old, whom they
consider as their own. Sandy was orphaned as a baby
and was entrusted to them by the midwife who
attended to Sandy's birth. All the children, including
Amy, now live with Andrew in his house.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Is there any legal obstacle to the legal adoption of Amy
by Andrew? To the legal adoption of Sandy by Andrew
and Elena? (2008 BAR)
A: NO, there is no legal obstacle to the legal adoption of Amy
by Andrew. While a person of age may not be adopted, Amy
falls within two exceptions: (1) she is an illegitimate child
and she is being adopted by her illegitimate father to
improve her status; and (2) even on the assumption that she
is not an illegitimate child of Andrew, she may still be
adopted, although of legal age, because she has been
consistently considered and treated by the adopter as his
own child since minority. In fact, she has been living with
him until now.
There is a legal obstacle to the adoption of Sandy by Andrew
and Elena. Andrew and Elena cannot adopt jointly because
they are not married.
L. SUPPORT
(2018, 2011, 2010, 2008, 2006, 2004 BAR)
1. WHAT COMPRISES SUPPORT
(2011 BAR)
2. WHO ARE OBLIGED TO GIVE SUPPORT
(2018, 2011, 2010, 2008 BAR)
Q: Sofia and Semuel, both unmarried, lived together for
many years in the Philippines and begot three children.
While Sofia stayed in the Philippines with the children,
Semuel went abroad to work and became a naturalized
German citizen. He met someone in Germany whom he
wanted to marry. Semuel thereafter came home and
filed a petition with the RTC for partition of the
common properties acquired during his union with
Sofia in the Philippines. The properties acquired during
the union consisted of a house and lot in Cavite worth
P2 million, and some personal properties, including
cash in bank amounting to P1 million. All these
properties were acquired using Semuel’s salaries and
wages since Sofia was a stay-at-home mother. In
retaliation, Sofia filed an action, on behalf of their
minor children, for support.
Should Semuel be required to support the minor
children? (2018 BAR)
A: YES, Semuel should be required to support the minor
children. Parents and their illegitimate children are obliged
to support each other. (Art. 195, FC) Semuel is required to
support his illegitimate children with Sofia. The children are
illegitimate, because they were conceived and born outside
a valid marriage. (Art. 165, FC) (UPLC Suggested Answers)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
ALTERNATIVE ANSWER:
Even if the new national law of Samuel does not oblige him
to support his minor illegitimate children in the Philippines,
the said foreign law cannot be applied in the Philippines for
two reasons: (1) the Philippines may refuse to apply said
foreign law, because it is contrary to a sound and
established policy of the forum; and (2) the Philippine laws
which have for their object public policy cannot be rendered
ineffective by a foreign law. (Art. 17(3) NCC; Del Soccoro v.
Van Wilsem, G.R. No. 193707, 10 Dec. 2014)
3. SOURCE OF SUPPORT
(2011, 2010, 2008 BAR)
Q: G filed on 08 July 2000 a petition for declaration of
nullity of her marriage to B. During the pendency of the
case, the couple entered into a compromise agreement
to dissolve their absolute community of property. B
ceded his right to their house and lot and all his shares
in two business firms to G and their two children, aged
18 and 19. B also opened a bank account in the amount
of P3 million in the name of the two children to answer
for their educational expenses until they finish their
college degrees. For her part, G undertook to shoulder
the day-to-day living expenses and upkeep of the
children. The Court approved the spouses’ agreement
on 08 Sept. 2000. Suppose the business firms suffered
reverses, rendering G unable to support herself and the
children. Can G still ask for support pendente lite from
B? Explain. (2010 BAR)
A: YES, G can still ask for support from B because during the
pendency of the action, the marriage between them is
considered still subsisting. (Art. 68, FC) Being considered
still married to each other, B and G still have the obligation
to support each other. The compromise agreement cannot
operate to waive future support when needed. (Art. 2035,
NCC)
After the compromise agreement was approved by the
court and the properties of the marriage were distributed,
there remained no more common properties of B and G.
While Art. 198, FC appears ' to limit the source of support to
the common properties of the said marriage in case of the
pendency of an action to declare the nullity of marriage,
Arts. 94 and 121 indicate otherwise. Under the said Articles,
the spouses remain personally and solidarily liable with
their separate properties for support even though, for
whatever reason, there are no more community or
partnership properties left.
The judgment based on the compromise dissolving the
property relations of B and G does not bar G from asking
support pendente lite. The dissolution of the property
relations of the spouses did not terminate the obligation
between them to support each other. The declaration of the
nullity of their marriage is what terminates the right of G to
be supported by B as his spouse.
54
 QuAMTO (1987-2022)
Q: Despite several relationships with different women,
Andrew remained unmarried. His first relationship M. PARENTAL AUTHORITY
with Brenda produced a daughter, Amy, now 30 years (2018, 2012, 2011, 2010, 2009 BAR)
old. His second, with Carla, produced two sons: Jon and
Ryan. His third, with Elena, bore him no children
although Elena has a daughter Jane, from a previous
relationship. His last, with Fe, produced no biological 1. CONCEPT OF PARENTAL AUTHORITY
children but they informally adopted without court (2012, 2010, 2009, 2006 BAR)
proceedings, Sandy's now 13 years old, whom they
consider as their own. Sandy was orphaned as a baby Q: Under Art. 213, FC, no child under 7 years of age shall
and was entrusted to them by the midwife who be separated from the mother unless the court finds
attended to Sandy's birth. All the children, including compelling reasons to order otherwise. (2006 BAR)
Amy, now live with Andrew in his house. (2008 BAR)
(a) Explain the rationale of this provision.
(a) In his old age, can Andrew be legally entitled to
claim support from Amy, Jon, Ryan, Jane, and A: The rationale of the provision is that a child below 7 years
Sandy assuming that all of them have the means old needs the love and care which only its mother can give.
to support him? The welfare of the child is given the highest priority and the
interest of the child prevails over procedural rules.
A: YES, Andrew can claim support from them all, except
from Sandy and Jane, who is not his child, legitimate, (b) Give at least 3 examples of “compelling reasons”
illegitimate, or adopted. which justify the taking away from the mother’s
custody of her child under 7 years of age.
(b) Can Amy, Jon, Ryan, Jane, and Sandy legally
claim support from each other? A: The following have been considered as “compelling
reasons” to deprive a mother of custody:
A: YES, Amy, Jon and Ryan, can legally claim support from
each other under Art. 196, FC which provides that brothers a. Neglect;
and sisters not legitimately related, whether of the full or b. Abandonment;
half-blood, are bound to support each other except when c. Unemployment;
the need for support is due to a cause imputable to the d. Immorality; (Espiritu v. Court of Appeals, G.R. No.
claimant’s fault or negligence. Jane and Sandy, however, 115640, 15 Mar. 1995)
cannot legally claim support from each other and from Amy, e. Alcoholism;
Jon and Ryan because they are not related to any of them. f. Drug addiction;
g. Maltreatment;
4. ORDER OF SUPPORT h. Insanity;
(2011 BAR) i. Highly communicable serious disease;
j. Grave physical handicap; and
k. Serious and credible threat by the child to ham
himself if separated from his mother. (Luna v. IAC,
G.R. No. L-68374, 18 June 1985)

2. SUBSTITUTE PARENTAL AUTHORITY

(2004 BAR)

Q: Distinguish briefly but clearly between: Substitute

parental authority and special parental authority.
(2004 BAR)

A: In substitute parental authority, the parents lose their

parental authority in favor of the substitute who acquires it
to the exclusion of the parents. In special parental authority,
the parents or anyone exercising parental authority does
not lose parental authority. Those who are charged with
special parental authority exercise such authority only
during the time that the child is in their custody or
supervision. Substitute parental authority displaces
parental authority while special parental authority concurs
with parental authority.

55 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
3. SPECIAL PARENTAL AUTHORITY
(2011, 2010, 2003 BAR)
Q: On 05 May 1989, 16-year-old Rozanno, who was
issued a student permit, drove to school a car, a gift
from his parents. On even date, as his class was
scheduled to go on a field trip, his teacher requested
him to accommodate in his car, as he did, four (4) of his
classmates because the van rented by the school was
too crowded. On the way to a museum which the
students were scheduled to visit, Rozanno made a
wrong maneuver, causing a collision with a jeepney.
One of his classmates died. He and the three (3) others
were badly injured. (2010 BAR)
(a) Who is liable for the death of Rozanno’s
classmate, and the injuries suffered by Rozanno
and his 3 other classmates? Explain.
A: At the time the incident occurred in May 1989, Rozanno
was still a minor. Being a minor, Art. 218, (FC) applies.
Pursuant to Art. 218, the school, its administrators and
teachers shall be liable for the acts of minor Rozanno
because of the special parental authority and responsibility
that they exercise over him. The authority applies to all
authorized activities, whether inside or outside the
premises of the school, entity or institution. The field trip on
which occasion Rozanno drove the car, was an authorized
activity, and, thus, covered by the provision. Furthermore,
the parents of Rozanno are subsidiarily liable pursuant to
Art. 219 of the FC, and principally liable under Art. 221 of the
FC, if they are negligent.
(b) Under the same facts, except the date of
occurrence of the incident, this time in mid-
1994, what would be your answer? Explain.
A: Since Rozanno was 16 years old in 1989, if the incident
happened sometime in the middle of 1994, Rozanno have
been 21 years old at the time. Hence, he was already of legal
age. The law reducing the age of majority to 18 years took
effect in December 1989.
Being of legal age, Arts. 218, 219, and 221, FC are no longer
applicable. In such case, only Rozanno will be personally
responsible for all the consequences of his act unless his
school or his parents were themselves also negligent and
such negligence contributed to the happening of the
incident. In that event, the school or his parents are not
liable under Arts. 218, 218, or 221, FC, but will be liable
under general provision of the NCC on quasi-delict.
Q: If during class hours, while the teacher was chatting
with other teachers in the school corridor, a 7-year-old
male pupil stabs the eye of another boy with a ball pen
during a fight, causing permanent blindness to the
victim, who could be liable for damages for the boy’s
injury: the teacher, the school authorities, or the guilty
boy’s parents? Explain. (2003 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: The school, its administrators, and teachers have special
parental authority and responsibility over the minor child
while under their supervision, instruction or custody. (Art.
218, FC) They are principally and solidarily liable for the
damages caused by the acts or omissions of the
unemancipated minor unless they exercised the proper
diligence required under the circumstances. (Art. 219, FC)
In the problem, the teacher and the school authorities are
liable for the blindness of the victim, because the student
who causes it was under their special parental authority
and they were negligent. They were negligent because they
were chatting in the corridor during the class period when
the stabbing incident occurred. The incident could have
been prevented had the teacher been inside the classroom
at that time. The guilty boy’s PARENTS are subsidiarily
liable under Art. 219, FC.
4. EFFECTS OF PARENTAL AUTHORITY
(2010 BAR)
Q: Gigolo entered into an agreement with Majorette for
her to carry in her womb his baby via in vitro
fertilization. Gigolo undertook to underwrite
Majorette’s pre-natal expenses as well as those
attendant to her delivery. Gigolo would thereafter pay
Majorette P2 million and, in return, she would give
custody of the baby to him. (2010 BAR)
(a) After Majorette gives birth and delivers the baby
to Gigolo following her receipt of P2 million, she
engages your services as her lawyer to regain
custody of the baby. Is the child entitled to
support and inheritance from Gigolo? Explain.
A: If Gigolo voluntarily recognize the child as his illegitimate
child in accordance with Art. 175 in relation to Art. 172 of
the FC, the child is entitled to support and inheritance from
Gigolo.
(b) What legal action can you file on behalf of
Majorette? Explain.
A: As her lawyer, I can file a petition for habeas corpus on
behalf Majorette to recover custody of her child. Since she is
the mother of the child that was born out of wedlock, she
has exclusive parental authority and custody over the child.
Gigolo, therefore, has no right to have custody of the child
and his refusal to give up custody will constitute illegal
detention for which habeas corpus is the proper remedy.
(c) Can Gigolo demand from Majorette the return of
the P2 million if he returns the baby? Explain.
A: NO, he cannot. Both he and Majorette are guilty of
violating the provision of the Anti-Child Abuse Law (R.A. No.
7610) on child trafficking. Being in pari delicto, the parties
shall be left where they are, and Gigolo cannot demand the
return of what he paid.
56
 QuAMTO (1987-2022)
PROPERTY, OWNERSHIP, AND ITS MODIFICATIONS
I. CLASSIFICATION OF PROPERTY
A. IMMOVABLES
(2022, 2016, 2007, 1997, 1995 BAR)
Q: How does the New Civil Code distinguish between
immovable and movable properties? Explain briefly
and give two examples for each. (2022 BAR)
A: An immovable property cannot be transported from
place to place whereas movable property can be
transported from place to place without impairment of the
real property to which they are fixed. Immovable property
includes lands, buildings, and construction of all kinds
adhered to the soil, and fertilizer actually used on a piece of
land. On the other hand, some examples of movable
property are forces of nature which are brought under
control by science and obligations and actions which have
for their object movables or demandable sums. (Central Bar
Q&A by Paguirigan, 2023)
Q: Manila Petroleum Co. owned and operated a
petroleum operation facility off the coast of Manila. The
facility was located on a floating platform made of wood
and metal, upon which was permanently attached the
heavy equipment for the petroleum operations and
living quarters of the crew. The floating platform
likewise contained a garden area, where trees, plants
and flowers were planted. The platform was tethered to
a ship, the MV 101, which was anchored to the seabed.
(2007 BAR)
(a) Is the platform movable or immovable
property?
A: The platform is an immovable property under Art.
415(9) NCC, which provides that “docks and structures
which, though floating, are intended by their nature and
object to remain at a fixed place on a river, lake or coast.”
Since the floating platform is a petroleum operation facility,
it is intended to remain permanently where it is situated,
even if it is tethered to a ship which is anchored to the
seabed.
(b) Are the equipment and living quarters movable
or immovable property?
57
A: YES, the equipment and living quarters of the crew are
immovable property. Art. 415(3) of the NCC classifies as an
immovable “everything attached to an immovable in a fixed
manner, in such a way that it cannot be separated therefrom
without breaking the material or deterioration of the
object.” Both the equipment and the living quarters are
permanently attached to the platform which is also an
immovable. The equipment can also be classified as an
immovable property under Art. 415(5), NCC because such
equipment are “machinery, receptacles, instruments or
implements intended by the owner of the tenement for an
industry or works which may be carried on in a building or
on a piece of land and which tend directly to meet the needs
of the industry or works.” It is logically assumed that the
petroleum industry may be carried on in a building or on a
piece of land and the platform is analogous to a building.
(c) Are the trees, plants and flowers immovable or
movable property?
A: YES, the trees, plants and flowers planted in the garden
area of the platform are immovable property under Art.
415(2) NCC which classifies as an immovable property
"trees, plants and growing fruits, while they are attached to
the land or form an integral part of an immovable, the
petroleum operation facility.
Q: Pedro is the registered owner of a parcel of land
situated in Malolos, Bulacan. In 1973, he mortgaged the
land to the Philippine National Bank (PNB) to secure a
loan of P100,000.00. For Pedro’s failure to pay the loan,
the PNB foreclosed on the mortgage in 1980, and the
land was sold at public auction to PNB for being the
highest bidder. PNB secured the title thereto in 1987. In
the meanwhile, Pedro, who was still in possession of the
land, constructed a warehouse on the property. In
1988, the PNB sold the land to Pablo. The Deed of Sale
was amended in 1989 to include the warehouse.
Pedro, claiming ownership of the warehouse, files a
complaint to annul the amended Deed of Sale before the
RTC of Quezon City, where he resides, against both the
PNB and Pablo. The PNB filed a motion to dismiss the
complaint for improper venue contending that the
warehouse is real property under Art. 415(1) of the NCC
and therefore the action should have instead been filed
in Malolos, Bulacan. Pedro claims otherwise. The
question arose as to whether the warehouse should be
considered as real or personal property.
If consulted, what would your legal advice be? (1997
BAR)
A: If I were consulted, I would advice that the warehouse
which is a construction adhered to the soil is an immovable
by nature under Art. 415(1), NCC, and the proper venue of
any case to recover ownership of the same which is what
the purpose of the complaint to annul the amended Deed of
Sale amounts to, should be the place where the property is
located, or the RTC of Bulacan.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: Salvador, a timber concessionaire, built on his lot a
warehouse where he processes and stores his timber
for shipment. Adjoining the warehouse is a furniture
factory owned by NARRAMIX of which Salvador is a
majority stockholder. NARRAMIX leased space in the
warehouse where it placed its furniture-making
machinery. (1995 BAR)
a. How would you classify the furniture-making
machinery as property under the NCC? Explain.
A: The furniture-making machinery is movable property
because it was not installed by the owner of the tenement.
To become immovable under Art. 415(5) of the NCC, the
machinery must be installed by the owner of the tenement.
b. Suppose the lease contract between Salvador
and NARRAMIX stipulates that at the end of the
lease the machinery shall become the property
of the lessor, will your answer be the same?
Explain.
A: It is immovable property. When there is a provision in
the lease contract making the lessor, at the end of the lease
owner of the machinery installed by the lessee, the said
machinery is considered to have been installed by the lessor
through the lessee who acted merely as his agent. Having
been installed by the owner of the tenement, the machinery
became immovable under Art. 415 of the NCC. (Davao
Sawmill v. Castillo, G.R. No. L-40411, 07 Aug. 1935)
B. MOVABLES
(2019, 2017 BAR)
Q: Mr. E leased a piece of land from Mr. F to be used for
his sawmill business for a period of 10 years.
Consequently, Mr. E placed heavy machineries thereon
to be used for his aforementioned business, with the
intention of removing them after the expiration of the
lease period. Are Mr. E's heavy machineries considered
real properties under the Civil Code? Explain. (2019
BAR)
A: NO, they are movables. Machinery which is movable in
its nature only becomes immobilized when placed in a plant
by the owner thereof in a land or building which is also
owned by him, for an industry or works which may be
carried on in a tenement and which tend directly to meet
the needs of said industry or works, but not when so placed
by a tenant, a usufructuary, or any person having only a
temporary right, unless such person acted as the agent of
the owner, for instance, if the lease contained a stipulation
that any useful improvement which the lessee introduces
on the leased property shall pertain to the lessor at the
termination of the lease. Here, the heavy machineries were
placed by Mr. E on a piece of land leased from Mr. F with the
intention of removing them after the expiration of the lease
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
period. Being movable in nature, said machineries were not
deemed immobilized. (UPLC Suggested Answers)
II. BUNDLE OF RIGHTS
A. OWNERSHIP
(2017, 2016, 2014, 2010, 2008, 2000, 1997, 1995 BAR)
Q: Joven and Juliana are the owners of a 30-hectare
plantation in Cotabato, covered by a title. One day, a
group of armed men forcibly entered their house and,
at gun point, forced them to sign a Deed of Absolute Sale
in favor of Romeo. Romeo got the title from them and
they were ejected from the house and threatened not to
come back or else they will be killed. The spouses went
to Manila and resided there for more than 35 years.
They never went back to Cotabato for fear of their lives.
Word came to them that peace and order have been
restored in their former place of residence and they
decided to reclaim their land for the benefit of their
grandchildren. Joven and Juliana filed a suit for
reconveyance of their property. This was opposed by
the grandson of Romeo to whom the title was
eventually transferred, on the ground of laches and
prescription. Decide the case and rule on the defenses
of laches and prescription. Explain your answer. (2016
BAR)
A: The right of the registered owners, Joven and Juliana, to
file suit to recover their property, is not barred by
prescription. Under Sec. 47, P.D. No. 1529, no title to
registered land in derogation of the title of the registered
owner shall be acquired by prescription or adverse
possession.
Proof of possession by the owner in an action for
reconveyance is immaterial and inconsequential. The right
to recover possession is equally imprescriptible since
possession is a mere consequence of ownership. (Republic
v. Mendoza, G.R. No. 185091, 08 Aug. 2010) The right of Joven
and Juliana to recover is not barred by laches, either. Laches
deals with unreasonable delay in filing the action. The
owner’s delay, if any, cannot be construed as deliberate and
intentional. They were simply coerced out of Cotabato and
threatened with death if they returned, and, thus, could not
have filed them.
Q: A congregation for religious women, by way of
commodatum, is using the real property owned and
registered in the name of Sps. Manuel as a retreat
house. Maria, a helper of the congregation discovered a
chest in the backyard. When she opened the chest, it
contained several pieces of jewelry and money. (2014
BAR)
58
 QuAMTO (1987-2022)
(a) Can the chest containing the pieces of
jewelry and money be considered as hidden
treasure?
A: NO, for property to be considered hidden treasure it must
consist of money, jewelry or other precious objects, the
lawful ownership of which does not appear. In the case at
bar, the chest was just lay in the backyard and the real
property where it was found belongs to the Sps. Manuel.
They are thus presumed the owner of the chest where the
jewelry was found.
(b) Who has the right to claim ownership of it?
A: Since it does not come within the purview of hidden
treasure, the Sps. Manuel have the right to claim ownership
over the chest as well as its contents.
Q: O, owner of Lot A, learning that Japanese soldiers
may have buried gold and other treasures at the
adjoining vacant Lot B belonging to Sps. X & Y,
excavated in Lot B where she succeeded in unearthing
gold and precious stones. How will the treasures found
by O be divided? (2010 BAR)
(1) 100% to O as finder;
(2) 50% to O and 50% to the Sps. X and Y;
(3) 50% to O and 50% to the State;
(4) None of the above
A: NONE OF THE ABOVE. The general rule us that the
treasure shall belong to the Sps. X and Y, the owners of Lot
B. Under Art. 438, NCC, the exception is that when the
discovery of a hidden treasure is made on the property of
another and by chance, one-half thereof shall belong to the
owner of the land and the other one-half is allowed to the
finder. In the problem, the finding of the treasure was not
by chance because O knew that the treasure was in Lot B.
While a trespasser is also not entitled to any share, and
there is no indication in the problem whether or not O was
a trespasser, O is not entitled to a share because the finding
was not “by chance.”
Q: Adam, a building contractor, was engaged by Blas to
construct a house on a lot which he (Blas) owns. While
digging on the lot in order to lay down the foundation of
the house, Adam hit a very hard object. It turned out to
be the vault of the old Banco de las Islas Filipinas. Using
a detonation device, Adam was able to open the vault
containing old notes and coins which were in
circulation during the Spanish era. While the notes and
coins are no longer legal tender, they were valued at
P100 million because of their historical value and the
coins silver nickel content. The following filed legal
claims over the notes and coins:
i. Adam, as finder;
ii. Blas, as owner of the property where they were
found;
iii. Bank of the Philippine Islands (BPI), as
59
successor-in-interest of the owner of the vault;
and
iv. The Philippine Government because of their
historical value.
Who owns the notes and coins? (2008 BAR)
A: Hidden treasure is a money jewelry or other precious
objects the ownership of which does not appear. (Art. 439,
NCC) The vault of the Banco de las Islas Filipinas has been
buried for about a century and the BPI cannot succeed by
inheritance to the property of Banco de las Islas Filipinas.
The ownership of the vault, together with the notes and
coins can now legally be considered as hidden treasure
because its ownership is no longer apparent. The
contractor, Adam, is not a trespasser and therefore entitled
to one-half (1/2) of the hidden treasure and Blas as owner
of the property, is entitled to the other half. (Art. 438, NCC)
Since the notes and coins have historical value, the
government may acquire them at their just price which in
turn will be divided equally between Adam and Blas. (Art.
438(3), NCC)
Q: Anthony bought a piece of untitled agricultural land
from Bert. Bert, in turn, acquired the property by
forging Carlo's signature in a deed of sale over the
property. Carlo had been in possession of the property
for eight (8) years, declared it for tax purposes, and
religiously paid all taxes due on the property. Anthony
is not aware of the defect in Bert's title but has been in
actual physical possession of the property from the
time he bought it from Bert, who had never been in
possession of the property for one year.
Can Anthony acquire ownership of the property by
acquisitive prescription? How many more years does
he have to possess it to acquire ownership? (2008 BAR)
A: YES, Anthony can acquire ownership of the property by
ordinary prescription which requires just title and good
faith. (Art. 1117, NCC) There was just title because a deed of
sale was issued in his favor even though it was forged, which
in fact he was not aware of. He needs to possess the land in
good faith and in the concept of an owner for a total of ten
years in order to acquire ownership. Since Anthony
possessed the land for only one year, he has not completed
the ten-year period. Even if Anthony tacks the 8-year period
of possession by Carlo who in the deed of sale is supposed
to be his grantor or predecessor in interest (Art. 1138(1),
NCC), the period is still short of ten years.
Q: Tim came into possession of an old map showing
where a purported cache of gold bullion was hidden.
Without any authority from the government Tim
conducted a relentless search and finally found the
treasure buried in a new riverbed formerly part of a
parcel of land owned by Sps. Tirso and Tessie. The old
river which used to cut through the land of Sps. Ursula
and Urbito changed its course through natural causes.
To whom shall the treasure belong? Explain (1995 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: The treasure was found in a property of public dominion,
the new riverbed. Since Tim did not have authority from the B. RIGHTS OF ACCESSION
government and, therefore, was a trespasser, he is not (2022, 2020-21, 2019, 2018, 2017, 2016, 2015, 2014,
entitled to the 1/2 share allotted to a finder of hidden 2013, 2011, 2010, 2009, 2008, 2003, 2001, 2000, 1999,
treasure. All of it will go to the State. In addition, under Art. 1996, 1992, 1990 BAR)
438 of the NCC in order that the finder be entitled to the 1/2
share, the treasure must be found by chance, that is by sheer
luck. In this case, since Tim found the treasure not by chance
but because he relentlessly searched for it. Thus, he is not 1. GENERAL PRINCIPLES
entitled to any share in the hidden treasure. (2014 BAR)

Q: Marcelino, a treasure hunter as just a hobby, has Q: A delayed accession is: (2014 BAR)
found a map which appears to indicate the location of (A)Formation of an island
hidden treasure. He has an idea of the land where the (B)Avulsion
treasure might possibly be found. Upon inquiry, (C) Alluvium
Marcelino learns that the owner of the land, Leopoldo, (D) Change in the course of the riverbed
is a permanent resident of Canada. Nobody, however,
could give him Leopoldo's exact address. Ultimately, A: (B) Avulsion. (Art. 459, NCC)
anyway, he enters the land and conducts a search. He
succeeds. Leopoldo learning of Marcelino's “find,” seeks 2. ACCESSION INDUSTRIAL
to recover the treasure from Marcelino but the latter is (2022, 2020-21, 2019, 2018, 2017, 2016, 2015, 2013,
not willing to part with it. Failing to reach an 2001, 2000, 1999, 1996, 1992, 1990 BAR)
agreement, Leopoldo sues Marcelino for the recovery of
the property. Marcelino contests the action. How would
Q: Pepe and Pilar are adjoining lot owners. Suppose
you decide the case? (1997 BAR)
Pepe’s lot is titled and without his knowledge, it was
encroached upon by Pilar whose lot is untitled but who
A: I would decide in favor of Marcelino since he is
honestly believed that the encroached portion, where
considered a finder by chance of the hidden treasure, hence,
she built a small bungalow house, is still within her
he is entitled to one-half (1/2) of the hidden treasure. While
property. (2022 BAR)
Marcelino may have had the intention to look for the hidden
treasure, still he is a finder by chance since it is enough that
a. Is Pilar a builder in good faith? Discuss Pepe’s
he tried to look for it. By chance in the law does not mean
right as against Pilar. Explain briefly.
sheer luck such that the finder should have no intention at
all to look for the treasure. By chance means good luck,
A: YES, Pilar is considered a builder in good faith. To be
implying that one who intentionally looks for the treasure
deemed a builder in good faith, it is essential that a person
is embraced in the provision. The reason is that it is
asserts title to the land on which he builds, i.e., that he be a
extremely difficult to find hidden treasure without looking
possessor in the concept of owner, and that he be unaware
for it deliberately.
that there exists in his title or mode of acquisition any flaw
which invalidates it. (Department of Education vs. Casibang,
Marcelino is not a trespasser since there is no prohibition
G.R. No. 192268, 27 Jan. 2016) Here, the facts clearly state
for him to enter the premises, hence, he is entitled to one-
that Pilar honestly believed that the encroached portion
half (1/2) of the treasure.
was still within her property.

Hence, Pilar is considered a builder in good faith. Since Pilar

is considered a builder in good faith, Pedro may exercise the
following options available to the landowner if the builder
is in good faith, to wit: 1) to appropriate the structure built
by Pilar after payment of proper indemnity; 2) to compel
Pilar to buy the encroached portion if its value is not
considerably higher than the building or the trees. 3) the
right to lease the land encroached by Pilar if the value of the
land is considerably higher than the value of the bungalow.
(Art. 448, NCC; Pleasantville Development Corporation vs.
Court of Appeals, G.R. No. 79688, 01 Feb. 1996) (Central Bar
Q&A by Paguirigan, 2023)

b. Suppose it is Pilar’s lot that is titled and Pepe’s

lot is untitled, would Pilar be a builder in good
faith? Discuss Pepe’s right as against Pilar.

U N I V E R S IT Y O F S A N T O T O M A S 60
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
Explain briefly.
A: YES, Pilar would still be considered a builder in good
faith. The fact that her property is covered by a title does not
mean that she knows the exact metes and bounds of her
property. In one case decided by the Supreme Court, it ruled
that unless one is versed in the science of surveying, "no one
can determine the precise extent or location of his property
by merely examining his paper title." (Co Tao vs. Chico G.R.
No. 49167, 30 Apr. 1949) Since Pilar is in good faith, Pepe can
appropriate the encroaching portion of Pilar's bungalow
after payment of proper indemnity or compel the latter to
buy the portion of his land encroached by the bungalow
provided that its value is not considerably higher than the
building. (Central Bar Q&A by Paguirigan, 2023)
Q: Believing that a parcel of land was a public land, a
farmer built a two-story concrete house on it. Five years
later, a person showed up bearing an Original
Certificate of Title over the lot which had been
registered for more than 10 years. The person asked
the farmer to vacate the parcel of land. The farmer
refused to vacate unless the titled owner pays the
market value of the house built on the parcel of land.
Does the farmer have legal ground to demand payment
for the house before vacating the parcel of land? Explain
briefly. (2020-21 BAR)
A: NO, the farmer does not have legal ground to demand
payment of the house before vacating the land. The facts
state that the farmer was aware right from the start that he
has no title whatsoever to the land because he believed it to
be a public land. As such, the farmer was a builder in bad
faith. A builder in bad faith loses what is built, planted, or
sown on the land of another without the right to indemnity.
(Art. 449, NCC) The owner of the land may also ask for the
demolition of the house to replace things in their former
condition at the expense of the farmer without any right on
the part of the latter to ask for indemnity. (Art. 450, NCC)
(Bar Q&A by Paguirigan, 2022)
Q: Believing that he owned a certain parcel of land and
completely unaware of any defect in his title thereto,
Mr. A started to build a house thereon. When Mr. P, the
real owner of the land learned of Mr. A's actions, Mr. P
immediately demanded Mr. A to leave the premises.
However, Mr. A refused to leave, and instead, asserted
that as a builder in good faith, Mr. P is obliged to sell the
land to him. (2019 BAR)
(a) Is the claim of Mr. A correct? Explain.
A: NO, Mr. A is not correct. Mr. A who was completely
unaware of any defect in his title, is a builder in good faith.
Mr. P who prompted Mr. A’s possession also acted in good
faith. Art. 448 applies in this case, which provides that only
the owner of the land on which anything has been built,
sown or planted in good faith, has the right to appropriate
as his own the works, sowing or planting, after payment of
the indemnity for necessary expenses and useful expenses
61
where applicable, or to oblige the one who built or planted
to pay the price of the land, and the one who sowed, the
proper rent; however, the builder or planter cannot be
obliged to buy the land if its value is considerably more than
that of the building or trees. The law grants said rights to
the owner of the land. The builder in good faith, Mr. A in this
case, cannot compel Mr. P, the owner of the land, to choose
which right to exercise, for the option belongs to the owner
alone.
(b) Assuming that Mr. P all the while, knew but
did not object to Mr. A's construction of the
house on his property, may Mr. A compel Mr.
P to purchase the said improvement due to
Mr. P's bad faith? Explain.
A: YES, Mr. A may compel Mr. P to purchase the
improvements. When the landowner acted in bad faith and
the builder, planter or sower proceeded in good faith, the
provisions under Art. 447, NCC shall apply. (Art. 454, NCC)
There is bad faith on the part of the landowner whenever
the act was done with his knowledge and without
opposition on his part. (Art. 453, NCC) Art. 447 of the NCC
provides that the owner of the land who makes thereon,
personally or through another, plantings, constructions or
works with the materials of another, shall pay their value;
and, if the landowner acted in bad faith, the owner of the
materials may remove them in any event, with a right to be
indemnified for damages. The landowner, having known
and without opposing the construction made by Mr. A is
deemed to have acted in bad faith. Art. 447, NCC therefore,
applies and Mr. P shall pay the value of the improvement,
i.e., the value of the materials, plus damages.
Q: Sammy and Santi are cousins who separately
inherited two adjoining lots from their grandfather.
Sammy is based overseas but wants to earn income
from his inherited land, so he asked a local contractor
to build a row of apartments on his property which he
could rent out. The contractor sent him the plans and
Sammy noticed that the construction encroached on a
part of Santi’s land, but he said nothing and gave
approval to construct based on the plans submitted by
the local contractor. Santi, based locally, and who loved
his cousin dearly, did not object even if he knew of the
encroachment since he was privy to the plans and
visited the property regularly. Later, the cousins had a
falling out and Santi demanded that the portion of the
apartments that encroached on his land be demolished.
Can Santi successfully file legal action to require the
demolition? (2018 BAR)
A: NO, Santi cannot successfully file a legal action to require
the demolition. Since the builder and the landowner both
acted in bad faith, their rights shall be the same as though
both had acted in good faith. (Art. 453, NCC) Sammy is not a
builder in good faith with respect to the portion of the
apartment encroaching on Santi’s property, because he
knew that he was not the owner of the land when he built
the apartment. There is bad faith, likewise, on Santi’s part,
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
because he did not object to the construction although he
had knowledge thereof. (Art. 453, NCC)
In cases where both the landowner and the builder acted in
good faith, the landowner does not have the option to
demand the demolition of the work. (Art. 448, NCC)
Q: Josef owns a piece of land in Pampanga. The National
Housing Authority (NHA) sought to expropriate the
property for its socialized housing project. The trial
court fixed the just compensation for the property at
P50 million. The NHA immediately deposited the same
at the authorized depository bank and filed a motion
for the issuance of a writ of possession with the trial
court. Unfortunately, there was delay in the resolution
of the motion. Meanwhile, the amount deposited
earned interest.
When Josef sought the release of the amount deposited
NHA argued that Josef should only be entitled to P50
million. Who owns the interest earned? (2017 BAR)
A: Josef owns the interest earned. In Republic v. Holy Trinity
Realty Development Corp. (GR. No. 172410, 14 Apr. 2008), the
Supreme Court has declared that upon deposit by the
appropriator of the amount fixed for just compensation, the
owner whose property is sought to be expropriated
becomes the owner of the deposited amount. Any interest,
therefore, that accrues to such deposit belongs to the owner
by right of accession. In the case at bar, Josef became the
owner of the amount deposited by NHA. Thus, any interest
that accrues therefrom pertains to Josef by right of
accession.
NOTE: In the case of NPC v. Heirs of Ramoran (GR. No.
193455, 13 June 2016), the Supreme Court ruled that the
imposable rate of interest is 12% per annum from the time
of the taking until 30 June 2013, and 6% per annum from 01
July 2013 until full payment.
Q: Pedro bought a parcel of land described as Cadastral
Lot No. 123 and the title was issued to his name. Juan
also bought a lot in the same place, which is described
as Cadastral Lot No. 124. Pedro hired a geodetic
engineer to determine the actual location of Lot No. 123
but for some reason, the engineer pointed to Lot No.
124 by mistake. Pedro hired a contractor to construct
his house and the latter put up a sign stating the name
of the owner of the project and the construction permit
number. It took more than a year before the house was
constructed. When Pedro was already residing in his
house, Juan told him to remove his house because it was
built on his (Juan's) lot.
Juan filed a Complaint for Recovery of Possession and
prayed that the house be removed because Pedro is a
builder in bad faith. Pedro filed his Answer with
Counterclaim that he is entitled to the payment of the
value of the house plus damages because he is a builder
in good faith and that Juan is guilty of estoppel and
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
laches. (2016 BAR)
(a) If Pedro is a builder in good faith, what are the
rights given to Juan under the law? Explain.
A: If Pedro is a builder in good faith and Juan is an owner in
good faith, Juan has the right to appropriate as his own the
house after payment of indemnity provided for in Arts. 546
and 548 of the NCC, which are the necessary and useful
expenses. As to useful expenses, Juan has the option to
either refund the amount of the expenses or pay the
increase in value which the land may have acquired by
reason thereof. Alternatively, under Art. 448 of the NCC,
Juan has the right to oblige Pedro to pay the price of the
land. However, Pedro cannot be obliged to buy the land if its
value is considerably more than that of the house. In such
case, he shall pay reasonable rend, if Juan does not choose
to appropriate the house after proper indemnity. It is the
owner of the land who is authorized to exercise the options
under Art. 448 because his right is older and by principle of
accession, he is entitled to the ownership of the accessory
thing.
If Pedro is a builder in good faith and Juan is an owner in
bad faith because Juan knew that Pedro was building on his
lot and did not oppose it (Art. 453(2)), and Art. 454, in
relation to Art. 447 of the NCC applies. Juan shall pay the
value of the house and is also liable for reparation of
damage. However, Pedro also has the right to remove or
demolish the house and ask for damages.
(b) If Pedro is a builder in bad faith, what are the
rights given to Juan under the law? Explain.
A: If Pedro is a builder in bad faith and Juan is an owner in
good faith, Juan has three options. He may appropriate the
improvements without indemnity under Art. 449 of the NCC
or demand the demolition of the house in order to replace
things to their former condition at Pedro’s expense under
Art. 450 or compel Pedro to pay the price of the land. In
addition to these options, Juan is also entitled to damages
from Pedro.
If Pedro is a builder in bad faith and Juan is an owner in bad
faith, it shall be as if both of them were in good faith. (Art.
453, NCC)
Q: Mr. and Mrs. X migrated to the US with all their
children. As they had no intention of coming back, they
offered their house and lot for sale to their neighbors,
Mr. and Mrs. A (the buyers) who agreed to buy the
property for 128 Million. Because Mr. and Mrs. A
needed to obtain a loan from a bank first, and since the
sellers were in a hurry to migrate, the latter told the
buyers that they could already occupy the house,
renovate it as it was already in a state of disrepair, and
pay only when their loan is approved and released.
While waiting for the loan approval, the buyers spent
P1 Million in repairing the house. A month later, a
person carrying an authenticated special power of
62
 QuAMTO (1987-2022)
attorney from the sellers demanded that the buyers
either immediately pay for the property in full now or
vacate it and pay damages for having made
improvements on the property without a sale having
been perfected. What are the buyers' options or legal
rights with respect to the expenses they incurred in
improving the property under circumstances? (2015
BAR)
A: The buyers here may be deemed possessors or builders
in good faith because they were made to believe that they
were allowed to make repairs or renovation by the sellers
themselves. As builders in good faith, they have the right to
seek reimbursement for the value of the improvements in
case the owner decides to appropriate them. They cannot
be asked to remove the improvements because that is not
one of the options given by law to the landowner in case the
builder is in good faith.
Q: Ciriaco Realty Corporation (CRC) sold to the Sps. Dela
Cruz a 500-square meter land (Lot A) in Paranaque. The
land now has a fair market value of P1,200,000. CRC
likewise sold to the Sps. Rodriguez, a 700-square meter
land (Lot B) which is adjacent to Lot A. Lot B has a
present fair market value of P1,500,000. The Sps. Dela
Cruz constructed a house on Lot B, relying on their
presentation of the CRC sales agent that it is the
property they purchased. Only upon the completion of
their house did the Sps. Dela Cruz discover that they had
built on Lot B owned by the Sps. Rodriguez, not on Lot A
that they purchased. They spent P1,000,000 for the
house. As their lawyer, advise the Sps. Dela Cruz on
their rights and obligations under the given
circumstances, and the recourses and options open to
them to protect their interests. (2013, 2001, 1992 BAR)
A: Based on the facts as stated, the Sps. Dela Cruz as builders
and the Sps. Rodriguez as landowners, are both in good
faith. The Sps. Dela Cruz are builders in good faith because
before constructing the house they exercised due diligence
by asking the agent of CRC the location of Lot A. and they
relied on the information given by the agent who is
presumed to know the identity of the lot purchased by the
Sps. Dela Cruz. (Pleasantville v. Court of Appeals, G.R. No.
79688, 01 Feb. 1996) On the other hand, there is no showing
that the landowners, Sps. Rodriguez, acted in bad faith. The
facts do not show that the building was done with their
knowledge and without opposition on their part. (Art. 453,
NCC) Good faith is always presumed. (Art. 527, NCC) The
owner of the land on which anything has been built, sown
or planted in good faith shall have the right:
1. to appropriate as his own the works after payment
of the indemnity provided for in Arts. 546 and 548,
NCC; or
2. to oblige the one who built to pay the price of the
land.
63
However, the builder cannot be obliged to buy the land if its
value is considerably more than that of the building. In such
case, he shall pay reasonable rent if the owner of the land
does not choose to appropriate the building or trees after
proper indemnity. (Art. 448, NCC)
The house constructed by the Sps. Dela Cruz is considered
as a useful expense, since it increased the value of the lot. As
such, should the Sps. Rodriguez decide to appropriate the
house, the Sps. Dela Cruz are entitled to the right of
retention pending reimbursement of the expenses they
incurred or the increase in value which the thing may have
acquired by reason of the improvement. (Art. 546, NCC)
Thus, the Sps. Dela Cruz may demand P1,000,000 as
payment of the expenses in building the house or increase
in value of the land because of the house as a useful
improvement, as may be determined by the court front the
evidence presented during the trial. (Depra Dumlao, G.R. No.
L-57348, 16 May 1985; Technogas Phils. v. Court of Appeals,
G.R. No. 108894, 10 Feb. 1997)
Q: Anselmo is the registered owner of a land and a
house that his friend Boboy occupied for a nominal
rental and on the condition that Boboy would vacate the
property on demand. With Anselmo's knowledge,
Boboy introduced renovations consisting of an
additional bedroom, a covered veranda, and a concrete
block fence, at his own expense. Subsequently, Anselmo
needed the property as his residence and thus asked
Boboy to vacate and turn it over to him. Boboy, despite
an extension, failed to vacate the property, forcing
Anselmo to send him a written demand to vacate. In his
own written reply, Boboy signified that he was ready to
leave but Anselmo must first reimburse him the value
of the improvements he introduced on the property as
he is a builder in good faith. Anselmo refused, insisting
that Boboy cannot ask for reimbursement as he is a
mere lessee. Boboy responded by removing the
improvements and leaving the building in its original
state. (2013, 1990 BAR)
(a) Resolve Boboy's claim that as a builder in good
faith, he should be reimbursed the value of the
improvements he introduced.
A: Boboy’s claim that he is a builder in good faith has no
legal basis. A builder in good faith is someone who occupies
the property in the concept of an owner. The provisions on
builder-planter-sower under the NCC cover cases in which
the builder, planter and sower believe themselves to be
owners of the land, or at least, to have a claim of title
thereto. As Boboy is a lessee of the property, even if he was
paying nominal rental, Art. 1678, NCC is applicable. Under
this provision, if the lessee makes, in good faith, useful
improvements which are suitable to the use for which the
lease is intended without altering the form or substance of
the property leased, the lessor upon the termination of the
lease shall pay the lessee one-half (1/2) of the value of the
improvements at that time. Should the lessor refuse to
reimburse said amount, the lessee may remove the
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improvements even though the principal thing may suffer
damage thereby.
(b) Can Boboy be held liable for damages for
removing the improvements over Anselmo's
objection?
A: NO. Boboy cannot be held liable for damages. The lessor,
Anselmo, refused to reimburse 1/2 of the value of the
improvements, so the lessee, Boboy, may remove the same,
even though the principal thing may suffer damage thereby.
If in removing the useful improvements Boboy caused more
impairment on the property leased than what is necessary,
he will be liable for damages. (Art. 1678, NCC)
Q: Mike built a house on his lot in Pasay City. Two years
later, a survey disclosed that a portion of the building
actually stood on the neighboring land of Jose, to the
extent of 40 square meters. Jose claims that Mike is a
builder in bad faith because he should know the
boundaries of his lot and demands that the portion of
the house which encroached on his land should be
destroyed or removed. Mike replies that he is a builder
in good faith and offers to buy the land occupied by the
building instead. (2001 BAR)
(a) Is Mike a builder in good faith or bad faith?
Why?
A: Mike is a builder in good faith. There is no showing that
when he built his house, he knew that a portion thereof
encroached on Jose's lot. Unless one is versed in the science
of surveying, he cannot determine the precise boundaries
or location of his property by merely examining his title. In
the absence of contrary proof, the law presumes that the
encroachment was done in good faith. (Technogas Phils. v.
Court of Appeals, G.R. No. 108894, 10 Feb. 1997)
(b) Whose preference should be followed? Why?
A: NONE of the preferences shall be followed. The
preference of Mike cannot prevail because under Art. 448 of
the NCC, it is the owner of the land who has the option or
choice, not the builder. On the other hand, even though the
option belongs to Jose, he cannot demand that the portion
of the house encroaching on his land be destroyed or
removed because this is not one of the options given by law
to the owner of the land. The owner may choose between
the appropriation of what was built after payment of
indemnity, or to compel the builder to pay for the land if the
value of the land is not considerably more than that of the
building. Otherwise, the builder shall pay rent for the
portion of the land encroached.
Q: Felix cultivated a parcel of land and planted it with
sugar cane, believing it to be his own. When the crop
was 8 months old and harvestable after two more
months, a resurvey of the land showed that it really
belonged to Fred. What are the options available to
Fred? (2000 BAR)
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2023 GOLDEN NOTES
A: As to the pending crops planted by Felix in good faith,
Fred has the option of allowing Felix to continue the
cultivation and to harvest the crops, or to continue the
cultivation and harvest the crops himself. In the latter
option, however, Felix shall have the right to a part of the
expenses of cultivation and to a part of the net harvest, both
in proportion to the time of possession. (Art. 545 NCC)
Q: In good faith, Pedro constructed a five-door
commercial building on the land of Pablo who was also
in good faith. When Pablo discovered the construction,
he opted to appropriate the building by paying Pedro
the cost thereof. However, Pedro insists that he should
be paid the current market value of the building, which
was much higher because of inflation. (2000 BAR)
(a) Who is correct Pedro or Pablo?
A: Pablo is correct. Under Art. 448, NCC in relation to Art.
546, NCC, the builder in good faith is entitled to a refund of
the necessary and useful expenses incurred by him, or the
increase in value which the land may have acquired by
reason of the improvement, at the option of the landowner.
The builder is entitled to a refund of the expenses he
incurred, and not to the market value of the improvement.
The case of Pecson v. Court of Appeals (G.R. No. 115814, 26
May 1995) is not applicable to the problem. In the Pecson
case, the builder was the owner of the land who later lost
the property at a public sale due to non-payment of taxes.
The Court ruled that Art. 448, NCC does not apply to the case
where the owner of the land is the builder but who later lost
the land; not being applicable, the indemnity that should be
paid to the buyer must be the fair market value of the
building and not just the cost of construction thereof. The
Court opined in that case that to do otherwise would
unjustly enrich the new owner of the land.
(b) In the meantime, that Pedro is not yet paid, who
is entitled to the rentals of the building, Pedro
or Pablo?
A: Pablo is entitled to the rentals of the building. As the
owner of the land, Pablo is also the owner of the building
being an accession thereto. However, Pedro who is entitled
to retain the building is also entitled to retain the rentals.
He, however, shall apply the rentals to the indemnity
payable to him after deducting reasonable cost of repair and
maintenance.
Q:
(a) Because of confusion as to the boundaries of
the adjoining lots that they bought from the
same subdivision company, X constructed a
house on the adjoining lot of Y in the honest
belief that it is the land that he bought from
the subdivision company. What are the
respective rights of X and Y with respect to
X's house?
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A: The rights of Y, as owner of the lot, and of X, as builder of
a house thereon, are governed by Art. 448 of the NCC which
grants to Y the right to choose between two remedies: (a)
appropriate the house by indemnifying X for its value plus
whatever necessary expenses the latter may have incurred
for the preservation of the land, or (b) compel X to buy the
land if the price of the land is not considerably more than
the value of the house. If it is, then X cannot be obliged to
buy the land, but he shall pay reasonable rent, and in case of
disagreement, the court shall fix the terms of the lease.
(b) Suppose X was in good faith but Y knew that
X was constructing on his (Y's) land but
simply kept quiet about it, thinking perhaps
that he could get X's house later. What are
the respective rights of the parties over X's
house in this case? (1999 BAR)
A: Since the lot owner Y is deemed to be in bad faith (Art.
453, NCC), X as the party in good faith may (a) remove the
house and demand indemnification for damages suffered by
him, or (b) demand payment of the value of the house plus
reparation for damages. (Art. 447, in relation to Art 454,
NCC) Y continues as owner of the lot and becomes, under
the second option, owner of the house as well, after he pays
the sums demanded.
Q: Bartolome constructed a chapel on the land of Eric.
What are his right if he were: (1996 BAR)
(a) A possessor of the land in good faith?
A: A chapel is a useful improvement. Bartolome may
remove the chapel if it can be removed without damage to
the land, unless Eric chooses to acquire the chapel. In the
latter case, Bartolome has the right to the reimbursement of
the value of the chapel with right of retention until he is
reimbursed. (Art. 448, in relation to Art. 546 and 547, NCC)
(b) A possessor of the land in bad faith?
A: Bartolome, under Art. 449 of the NCC, loses whatever he
built, without any right to indemnity.
Q: A owns a parcel of residential land worth
P500,000.00. Unknown to A, a residential house costing
P100,000.00 is built on the entire parcel by B who
claims ownership of the land. Answer all the following
questions based on the premise that B is a builder in
good faith and A is a landowner in good faith.
Give reasons for your answers. (1992 BAR)
(a) May A acquire the house built by B? If so, how?
A: YES, A may acquire the house built by B by paying
indemnity to B. Art. 448 of the NCC provides that the owner
of the land on which anything has been built, sown or
planted in good faith, shall have the right to appropriate as
his own works, sowing or planting, after payment of the
65
indemnity provided for in Art. 546 of the NCC.
(b) If the land increased in value to P500,000.00 by
reason of the building of the house thereon,
what amount should be paid by A in order to
acquire the house from B?
A: A should pay B the sum of P50,000.00. Art. 548 of the NCC
provides that useful expenses shall be refunded to the
possessor in good faith with the right of retention, the
person who has defeated him in the possession having the
option of refunding the amount of the expenses or of paying
the increase in value which the thing may have acquired by
reason thereof. The increase in value amounts to
P50,000.00.
(c) Assuming that the cost of the house was
P900,000.00 and not P100,000.00, may A
require B to buy the land?
A: YES, A may require B to buy the land. Art. 448 of the NCC
provides that the owner of the land on which anything has
been built in good faith shall have the right to oblige the one
who built to pay the price of the land if its value is not
considerably more than that of the building.
(d) If B voluntarily buys the land as desired by A,
under what circumstances may A nevertheless
be entitled to have the house removed?
A: If B agrees to buy land but fails to pay, A can have the
house removed. (Depra Dumlao, G.R. No. L-57348, 16 May
1985; Technogas Phils. v. Court of Appeals, G.R. No. 108894,
10 Feb. 1997)
(e) In what situation may a “forced lease” arise
between A and B, and what terms and
conditions would govern the lease?
A: Art. 448 of the NCC provides that the builder cannot be
obliged to buy the land if its value is considerably more than
that of the building. In such case, he shall pay reasonable
rent, if the owner of the land does not choose to appropriate
the building after proper indemnity. The parties shall agree
upon the terms of the lease and in case of disagreement, the
court fix the terms thereof.
3. ACCESSION NATURAL
(2017, 2016, 2014, 2009, 2008, 2003, 2001 BAR)
Q: Plutarco owned land that borders on a river. After
several years the action of the water of the river caused
the deposit of soil and increased the area of Plutarco's
property by 200 square meters. (2017 BAR)
(a) If Plutarco wants to own the increase in area,
what will be his legal basis for doing so? Explain
your answer.
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A: Plutarco's legal basis for owning the increase in area
would be by accretion under Art. 457 of the NCC, which says
that the accretion of soil which is gradually received from
the effects of the current of the waters belongs to the
owners of land adjoining the banks of the river. The
requisites in order that the riparian owner will own the
alluvion deposited through the process of accretion are as
follows: (1) the deposit should be gradual and
imperceptible, (2) the cause of the accretion is the current
of the river and is not artificial or man-made, and (3) the
land where the accretion takes place is adjacent to the river
bank.
In Plutarco's case, all three requisites are met, as the
accretion took place over several years, was caused by the
action of the river, and the land he owned borders a riven.
Therefore, he owns the increase in area by virtue of
accretion.
(b) On the other hand, if the river dries up, may
Plutarco validly claim a right of ownership of
the dried-up river bed? Explain your answer.
A: Rivers and their natural beds, being of public dominion
(Art. 502(1), NCC), are not subject to appropriation or
accretion. The dried-up riverbed remains to be of public
dominion and Plutarco cannot validly claim a right
ownership over it. (Republic v. Santos, G.R. No. 160453, 12
Nov. 2012)
Q: Benjamin is the owner of a titled lot which is
bounded on the north by the Maragondon River. An
alluvial deposit of two (2) hectares was added to the
registered area. Daniel took possession of the portion
formed by accretion and claims that he has been in
open, continuous and undisturbed possession of said
portion since 1923 as shown by a tax declaration. In
1958, Benjamin filed a Complaint for Quieting of Title
and contends that the alluvium belongs to him as the
riparian owner and that since the alluvium is, by law,
part and parcel of the registered property, the same
may be considered as registered property.
Decide the case and explain. (2017, 2016 BAR)
A: I will decide in favor of Daniel and dismiss the action to
quite title filed by Benjamin. Under Art. 457 of the NCC, the
owner of lands adjoining the banks of rivers belong the
accretion which they gradually receive from the effects of
the current of the waters. The accretion, however, does not
automatically become registered land. It must be brought
under the Torrens system of registration by Benjamin, the
riparian owner. Since he did not, then the increment, not
being registered land, was open to acquisition through
prescription by third persons, like Daniel. (Grande v. Court
of Appeals, G.R. No. L-17652, 30 June 1962; Cureg v. IAC, G.R.
No. 73465, 07 Sept. 1989)
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2023 GOLDEN NOTES
Q: The properties of Jessica and Jenny, who are
neighbors, lie along the banks of the Marikina River. At
certain times of the year, the river would swell and as
the water recedes, soil, rocks and other materials are
deposited on Jessica's and Jenny's properties. This
pattern of the river swelling, receding and depositing
soil and other materials being deposited on the
neighbors’ properties have gone on for many years.
Knowing this pattern, Jessica constructed a concrete
barrier about 2 meters from her property line and
extending towards the river, so that when the water
recedes, soil and other materials are trapped within
this barrier. After several years, the area between
Jessica's property line to the concrete barrier was
completely filled with soil, effectively increasing
Jessica's property by two (2) meters. Jenny's property,
where no barrier was constructed, also increased by
one meter along the side of the river. (2017, 2008 BAR)
(a) Can Jessica and Jenny legally claim ownership
over the additional two (2) meters and one (1)
meter, respectively, of land deposited along
their properties?
A: Jenny can legally claim ownership of the lands by right of
accession (accretion) under Art. 457 of the NCC. The lands
came into being over the years through the gradual
deposition of soil and silt by the natural action of the waters
of the river. Jessica cannot claim the two-meter-wide strip
of land added to her land. Jessica constructed the cement
barrier two meters in front of her property towards the
river not to protect her land from the destructive forces of
the water but to trap the alluvium. In order that the riparian
owner may be entitled to the alluvium the deposition must
occur naturally without the intervention of the riparian
owner. (Republic v. Court of Appeals, G.R. No. L-61647, 12 Oct.
1984)
(b) If Jessica's and Jenny's properties are
registered, will the benefit of such registration
extend to the increased area of their
properties?
A: NO, the registration of Jessica’s and Jenny’s adjoining
property does not automatically extend to the accretions.
They have to bring their lands under the operation of the
Torrens system of land registration following the procedure
prescribed in P.D. No. 1529.
(c) Assume the two properties are on a cliff
adjoining the shore of Laguna Lake. Jessica and
Jenny had a hotel built on the properties. They
had the earth and rocks excavated from the
properties dumped on the adjoining shore,
giving rise to a new patch of dry land. Can they
validly lay claim to the patch of land?
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 QuAMTO (1987-2022)
A: NO, Jessica and Jenny cannot validly lay claim to the price
of dry land that resulted from the dumping of rocks and
earth materials excavated from their properties because it
is a reclamation without authority. The land is part of the
lakeshore, if not the lakebed, which is inalienable land of the
public domain.
Q: Marciano is the owner of a parcel of land through
which a river runs out into the sea. The land had been
brought under the Torrens System and is cultivated by
Ulpiano and his family as farmworkers therein. Over
the years, the river has brought silt and sediment from
its sources up in the mountains and forests so that
gradually the land owned by Marciano increased in
area by three hectares. Ulpiano built three huts on this
additional area, where he and his two married children
live. On this same area, Ulpiano and his family planted
peanuts, monggo beans, and vegetables. Ulpiano also
regularly paid taxes on the land, as shown by tax
declarations, for over thirty years. When Marciano
learned of the increase in the size of the land, he
ordered Ulpiano to demolish the huts, and demanded
that he be paid his share in the proceeds of the harvest.
Marciano claims that under the NCC, the alluvium
belongs to him as a registered riparian owner to whose
land the accretion attaches, and that his right is
enforceable against the whole world. (2009 BAR)
(a) Is Marciano correct? Explain.
A: YES, Marciano’s contention is correct. Since that
accretion was deposited on his land by the action of the
waters of the river and he did not construct any structure to
increase the deposition of soil and silt, Marciano
automatically owns the accretion. His real right of
ownership is enforceable against the whole world including
Ulpiano and his two married children. Although Marciano’s
land is registered, the three (3) hectares land deposited
through accretion was not automatically registered. As an
unregistered land, it is subject to acquisitive prescription by
third persons.
Although Ulpiano and his children live in the three (3)
hectare unregistered land owned by Marciano, they are
farm workers; therefore, they are possessors not in the
concept of owners but in the concept of mere holders. Even
if they possess the land for more than 30 years, they cannot
become the owners thereof through extraordinary
acquisitive prescription, because the law requires
possession in the concept of the owner. Payment of taxes
and tax declaration are not enough to make their possession
one in the concept of owner. They must repudiate the
possession in the concept of holder by executing
unequivocal acts of repudiation amounting to ouster of
Marciano, known to Marciano and must be proven by clear
and convincing evidence. Only then would his possession
become adverse.
(b) What rights, if any, does Ulpiano have against
Marciano? Explain.
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A: Although Ulpiano is a possessor in bad faith because he
knew he does not own the land, he will lose the three huts
he built in bad faith and make an accounting of the fruits he
has gathered, he has the right to deduct from the value of
the fruits the expenses for production, gathering and
preservation of the fruits. (Art. 443, NCC)
He may also ask for reimbursement of the taxes he has paid,
as these are charges on the land owned by Marciano. This
obligation is based on a quasi-contract. (Art. 2175, NCC)
Q: Andres is a riparian owner of a parcel of registered
land. His land, however, has gradually diminished in
area due to the current of the river, while the registered
land of Mario on the opposite bank has gradually
increased in area by 200-square meters. (2003 BAR)
(a) Who has the better right over the 200-square
meter area that has been added to Mario’s
registered land, Mario or Andres?
A: Mario has a better right over the 200 square meters
increase in area by reason of accretion, applying Art. 457 of
the NCC, which provides that “to the owners of lands
adjoining the banks of rivers belong the accretion which
they gradually received from the effects of the current of the
waters.” Andres cannot claim that the increase in Mario’s
land is his own, because such is an accretion and not a result
of the sudden detachment of a known portion of his land
and its attachment to Mario’s land, a process called
“avulsion”. He can no longer claim ownership of the portion
of his registered land which was gradually and naturally
eroded due to the current of the river, because he had lost it
by operation of law. That portion of the land has become
part of the public domain.
(b) May a third person acquire said 200- square
meter land by prescription?
A: YES, a third party may acquire by prescription the 200
square meters, increase in area, because it is not included in
the Torrens Title of the riparian owner. Hence, this does not
involve the imprescriptibility conferred by Sec. 47, P.D. No.
1529. The fact that the riparian land is registered does not
automatically make the accretion thereto a registered land.
(Grande v. Court of Appeals, G.R. No. L- 17652, 30 June 1962;
Jagualing v. Court of Appeals, G.R. No. 94283, 04 Mar. 1991)
Q: For many years, the Rio Grande river deposited soil
along its bank, beside the titled land of Jose. In time,
such deposit reached an area of one thousand square
meters. With the permission of Jose, Vicente cultivated
the said area. Ten years later, a big flood occurred in the
river and transferred 1000 square meters to the
opposite bank, beside the land of Agustin. The land
transferred is now contested by Jose and Agustin as
riparian owners, and by Vicente who claims ownership
by prescription.
Who should prevail? Why? (2001 BAR)
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A: Jose’s claim should prevail. The disputed area, which is
an alluvion, belongs by right of accretion to Jose, the
riparian owner. (Art. 457, NCC) When, as given in the
problem, the very same area was "transferred" by flood
waters to the opposite bank, it became an avulsion and
ownership thereof is retained by Jose who has two years to
remove it. (Art. 459, NCC) Vicente's claim based on
prescription is baseless since his possession was by mere
tolerance of Jose and, therefore, did not adversely affect
Jose's possession and ownership. (Art. 537, NCC) Inasmuch
as his possession is merely that of a holder, he cannot
acquire the disputed area by prescription.
C. ACTIONS TO RECOVER OWNERSHIP AND
POSSESSION OF PROPERTY
(2019, 2017, 2012, 2011 BAR)
1. ACCION REIVINDICATORIA
(2012 BAR)
Q: Action to recover real property based on ownership.
Here, the object is the recovery of the dominion over
the property as owner. What action is being referred to?
(2012 BAR)
A) Accion publiciana
B) Accion reinvindicatoria
C) Accion interdictal
D) Quieting of Title
A: B. (UPLC Suggested Answers)
2. ACCION PUBLICIANA
(2017, 2012 BAR)
Q: Jacob has owned a farmland in Ramos, Tarlac. In
2012, Liz surreptitiously entered and cultivated the
property. In 2014, Jacob discovered Liz’s presence in
and cultivation of the property. Due to his being busy
attending to his business in Cebu, he tolerated Liz’s
cultivation of the property. Subsequently, in December
2016, Jacob wanted to regain possession of the
property. Hence, he sent a letter to Liz demanding that
she vacate the property. Liz did not vacate despite
demand. Jacob comes to enlist your legal assistance to
bring an action against Liz to recover the possession of
the property.
What remedies are available to Jacob to recover
possession of his property under the circumstances?
Explain your answer. (2017, 2012, 2006 BAR)
A: The remedy available to Jacob is accion publiciana or an
action for the recovery of the better right of possession or
possession as a real right. It also refers to an ejectment suit
filed after the expiration of one year from accrual of the
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2023 GOLDEN NOTES
cause of action or from the unlawful withholding of
possession of the realty.
Since the entry made by Liz is through stealth, Jacob could
have filed an action for forcible entry. Ordinarily, the one-
year period within which to bring an action for forcible
entry is generally counted from the date of actual entry on
the land, except that when the entry is through stealth, the
one-year period is counted from the time the plaintiff
learned thereof. Here, since more than year had elapsed
since Jacob learned of the entry made by Liz through stealth,
the action that may be filed by Jacob is no longer forcible
entry, but an accion publiciana. (Canlas v. Tubil, G.R. No.
184285, 25 Sept. 2009; Valdez v. Court of Appeals, G.R. No.
132424, 02 May 2006)
ALTERNATIVE ANSWER:
Jacob can file an action for unlawful detainer against Liz to
regain possession of the property. An action for unlawful
detainer is proper when the defendant’s initial right to
possession of the property has terminated but he
unlawfully withholds possession thereof. It has to be filed
within one year from the termination of his right to
possession. Although Liz surreptitiously entered in 2012,
her possession became lawful when Jacob discovered it and
allowed her to continue possession by tolerance in 2014.
Liz’s right to possession terminated in December 2016
when Jacob demanded her to vacate the property. Since
today is Nov. 2017, it is still within one year from the
termination of Liz’s right to possession. Therefore, Jacob
can file an action for unlawful detainer.
Q: Jacob has owned a farmland in Ramos, Tarlac. In
2012, Liz surreptitiously entered and cultivated the
property. In 2014, Jacob discovered Liz's presence in
and cultivation of the property. Due to his being busy
attending to his business in Cebu, he tolerated Liz's
cultivation of the property. Subsequently, in Dec. 2016,
Jacob wanted to regain possession of the property;
hence, he sent a letter to Liz demanding that she vacate
the property. Liz did not vacate despite the demand.
Jacob comes to enlist your legal assistance to bring an
action against Liz to recover the possession of the
property. What remedies are available to Jacob to
recover possession of his property under the
circumstances? Explain your answer. (2017 BAR)
A: The remedy available to Jacob is accion publiclana, or an
action for the recovery pf the better right of possession or
possession as a real right. It also refers to an ejectment suit
filed after the expiration of one year from accrual of the
cause of action or from the unlawful withholding of
possession of the realty. Since the entry made by Liz is
through stealth, Jacob could have filed an action for forcible
entry. Ordinarily, the one-year period within which to bring
an action for forcible entry is generally counted from the
date of actual entry on the land, except that when the entry
is through stealth, the one year period is counted from the
time the plaintiff learned thereof. Here, since more than one
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 QuAMTO (1987-2022)
year had elapsed since Jacob learned of the entry made by
Liz through stealth, the action that maybe filed by Jacob is
no longer forcible entry, but an accion publiciana. (Conks v.
Tubil, G.R. No. 184285, 25 Sept. 2009; Valdez v. Court of
Appeals, G.R. No. 132424, 04 May 2006).
3. ACCION INTERDICTAL
(2012 BAR)
Q: Alberto and Janine migrated to the United States of
America, leaving behind their 4 children, one of whom
is Manny. They own a duplex apartment and allowed
Manny to live in one of the units. While in the United
States, Alberto died. His widow and all his children
executed an Extrajudicial Settlement of Alberto's estate
wherein the two-door apartment was assigned by all
the children to their mother, Janine. Subsequently, she
sold the property to George. The latter required Manny
to sign a prepared Lease Contract so that he and his
family could continue occupying the unit. Manny
refused to sign the contract alleging that his parents
allowed him and his family to continue occupying the
premises. If you were George's counsel, what legal steps
will you take? Explain. (2006 BAR)
A: As George’s counsel, I will give Manny a written demand
to vacate within a definite period, say 15 days. After the
lapse of 15-day period, I will file an action for unlawful
detainer to recover the possession of the apartment from
Manny. Manny’s occupation of the premises was by mere
tolerance of his parents. When all the co-heirs/co-owners
assigned the two-door apartment to Janine in the
extrajudicial partition, Janine became the sole owner of the
same. He continued to occupy it under the same familial
arrangement. Upon the sale of the property to George,
Manny’s lawful occupation of the property was terminated
and Manny’s refusal to sign the lease contract and to vacate
the premises after the period to vacate lapsed made his
occupation unlawful, hence, entitling George to the remedy
of unlawful detainer.
4. QUIETING OF TITLE
(2019, 2011 BAR)
Q: Which of the following is an indispensable
requirement in an action for "quieting of title" involving
real property? The plaintiff must (2011 BAR)
(A) be in actual possession of the property.
(B) be the registered owner of the property.
(C) have legal or equitable title to the property.
(D) be the beneficial owner of the property.
A: (C) have legal or equitable title to the property.
69
Q: Mr. R is the registered owner of a parcel of land
located in Cebu City by TCT No. 1234 issued in 1955.
Since his acquisition of the lot, Mr. R and his family had
been in continuous, open, and peaceful possession
thereof. Mr. R died in 1980, resulting in the land being
transferred in the names of his heirs, A, B, and C, who
became registered owners thereof as per TCT No. 5678.
During the entire time, said land had never been
encumbered or disposed, and that its possession
always remained with them. Sometime in 1999, A, B,
and C wanted to build a concrete fence around the
parcel of land, but they were opposed by Mrs. X who
started claiming ownership over the same property on
the strength of a Deed of Absolute Sale purportedly
entered by her with Mr. R during the time he was still
alive. Aggrieved, A, B, and C intend to file a complaint
for quieting of title against Mrs. X. (2019 BAR)
(a) What are the substantive requisites for the
action to prosper? Do they obtain in this case?
Explain.
A: For an action to quiet title to prosper, the following
requisites must obtain in the case: (1) the plaintiff or
complainant has a legal or an equitable title to or interest in
the real property subject of the action; and (2) the
instrument, record, claim, encumbrance, or proceeding
claimed to be casting cloud on the title must be shown to be
in fact invalid or inoperative despite its prima facie
appearance of validity or legal efficacy. The requisites for an
action to quiet the title obtain in this case, since A, B, and C
are the registered owners of the parcel of land. Having
inherited the same from their father Mr. R, and the Deed of
Absolute Sale, which cast a cloud on their title may be
shown to be invalid or inoperative. (Heirs of Delfin v. Heirs
of Bacud, G.R. No. 187633, 04 Apr. 2016)
(b) Within what period should A, B, and C file the
complaint for quieting of title? Explain.
A: The action for quieting title does not prescribe, because
the plaintiffs are in possession of the land. (Heirs of Uberas
v. CFI, G.R. No. L-48268, 30 Oct. 1978)
(c) Assuming that B and C are residing abroad,
may A, without the knowledge of B and C, file
the complaint for quieting of title on behalf of
all the heirs? Explain.
A: YES, A may file the complaint if he files the same for the
co-ownership. Anyone of the co-owners may bring such an
action in ejectment (Art. 87, NCC), even without joining all
the other co-owners as co-plaintiffs, because the suit is
deemed to be instituted for the benefit of all, assuming A
wins the case. Parenthetically, if A loses in the action to
quiet the title, it will if not affect B and C, because the Court
did not acquire jurisdiction over their persons. The Court
further held that if the action is for the benefit of the plaintiff
alone, such that he claims the possession for himself and not
for the co-ownership, the action will not prosper (Celino v
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Heirs of Alejo, G.R. No 1618117, 30 July 2004) (UPLC
Suggested Answers)
D. CO-OWNERSHIP
(2020-21, 2019, 2015, 2011, 2009, 2008, 2007, 2006,
2002, 2000, 1998, 1993 BAR)
1. DISTINCTIONS BETWEEN RIGHT TO PROPERTY
OWNED IN COMMON AND FULL OWNERSHIP OVER THE
IDEAL SHARE
(2022 BAR)
Q: Thea, Vanessa, and Sophia are siblings who are co-
owners of a 600-sq. m. parcel of land covered by TCT No.
12345 situated along Bangkal Road, Makati City. Thea
decided to sell her share, an undivided 200-sq. m.
portion of the property, to Alyssa, a Filipino nurse who
has been living in Canada for the last 10 years. Alyssa,
without the knowledge of Sophia and Vanessa, built a
modest house on the 200-sq. m. portion abutting the
road and leased it to Stell for Php 15,000.00 per month.
(2022 BAR)
a. Could Thea legally transfer her share of the
property to Alyssa without the consent of
Vanessa and Sophia? Explain briefly.
A: YES, Thea could legally transfer her share of the property
to Alyssa even without the consent of Vanessa and Sophia.
Each co-owner shall have full ownership of his part and of
the fruits and benefits pertaining thereto, and he may
therefore alienate, assign, or mortgage it, and even
substitute another person in its enjoyment except when
personal rights are involved. (Article 493, Civil Code)
However, Thea can only transfer her undivided share or
interest in the land since the sale was made prior to the
partition of the property. Alyssa obtains by virtue of such
sale, the same rights as Thea had as co-owner, in an ideal
share equivalent to the consideration given under their
transaction. (Central Bar Q&A by Paguirigan, 2023)
b. Can Vanessa and Sophia respectively legally
demand from Alyssa a onethird share in the
rentals? Explain briefly.
A: NO, Vanessa and Sophia cannot demand the one-third
share in the rentals because the sale made by Thea validly
transferred ownership of the undivided portion. By virtue
of the valid sale of Thea's share to Alyssa, the latter steps
into the shoes of the vendor as a co-owner (Torres v.
Lapinid, G.R. No. 187987, November 26, 2014) and is
therefore entitled to the fruits or rentals obtained from the
property. (Central Bar Q&A by Paguirigan, 2023)
2. CONTRIBUTIONS FOR EXPENSES
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
3. REDEMPTION
(2008 BAR)
Q: Anthony bought a piece of untitled agricultural land
from Bert. Bert, in turn, acquired the property by
forging Carlo's signature in a deed of sale over the
property. Carlo had been in possession of the property
for 8 years, declared it for tax purposes, and religiously
paid all taxes due on the property. Anthony is not aware
of the defect in Bert's title but has been in actual
physical possession of the property from the time he
bought it from Bert, who had never been in possession
of the property for one year. (2008 BAR)
(a) If Carlo is able to legally recover his property,
can he require Anthony to account for all the
fruits he has harvested from the property
while in possession?
A: NO, Anthony cannot be made to account for the fruits he
gathered before he was served with summons as Anthony
is a possessor in good faith. A possessor in good faith is
entitled to the fruits received before the possession was
legally interrupted by the service of summons. (Art. 554,
NCC) After Anthony was served with summons, he became
a possessor in bad faith and a builder, planter, and sower in
bad faith. He can also be made to account for the fruits, but
he may deduct expenses or production gathering and
preservation of the fruits. (Art. 443, NCC)
(b) If there are standing crops on the property
when Carlo recovers possession, can Carlo
appropriate them?
A: The value of the standing crops must be prorated
depending upon the period of possession and the period of
growing and producing the fruits. Anthony is entitled to a
part of the net harvest and a part of expenses of cultivation
in proportion to his period of possession. Carlo may
appropriate the respective parts subject to prorating the
respective periods of possession. However, Carlos may
allow Anthony to gather these growing fruits as an
indemnity for the expenses of cultivation. If Anthony
refuses to accept the concession, he shall lose the right to
indemnity under Art. 443, NCC. (Art. 545(3), NCC)
4. PARTITION
(2020-21, 2018, 2015, 2011, 2008, 2007, 2002, 2000,
1998, 1993 BAR)
Q: Four siblings co-own a two-hectare, commercially
viable property located next to a major road. The
siblings have equal shares but none of them have
exerted any efforts to partition the property. A large
retail conglomerate then offered to purchase the entire
property. Three of the siblings were willing to sell, but
one refused, wanting to hold on to the land in memory
of their departed parents. The three willing siblings
proceeded to sell their respective shares in the
70
 QuAMTO (1987-2022)
property to the large retail conglomerate, after the sale,
the conglomerate filed a case in court to partition the
property. Should the court allow the partition? Explain
briefly. (2020-21 BAR)
A: YES, the court should allow the partition of the property.
As a rule, no co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share
is concerned. (Art. 494, NCC) Also, each co-owner shall have
the full ownership of their part and of the fruits and benefits
pertaining thereto, and they may therefore alienate, assign,
or mortgage it, and even substitute another person in its
enjoyment, except when personal rights are involved. But
the effect of the alienation or the mortgage, with respect to
the co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the
co-ownership. (Art. 493, NCC) The retail conglomerate who
bought the undivided shares of the three siblings stepped
into the shoes of the latter and may therefore ask for
partition of the property. (Bar Q&A by Paguirigan, 2022)
Q: Sofia and Semuel, both unmarried, lived together for
many years in the Philippines and begot three children.
While Sofia stayed in the Philippines with the children,
Semuel went abroad to work and became a naturalized
German citizen. He met someone in Germany whom he
wanted to marry. Semuel thereafter came home and
filed a petition with the RTC for partition of the
common properties acquired during his union with
Sofia in the Philippines. The properties acquired during
the union consisted of a house and lot in Cavite worth
P2 million, and some personal properties, including
cash in bank amounting to P1 million. All these
properties were acquired using Semuel’s salaries and
wages since Sofia was a stay-at-home mother. In
retaliation, Sofia filed an action, on behalf of their
minor children, for support. How should the properties
be partitioned? (2018 BAR)
A: The properties should be divided equally between Sofia
and Semuel. The property relations of Sofia and Semuel is
governed by Art. 147, FC because they lived exclusively with
each other as husband and wife, and they were capacitated
to marry each other. Under the said provision, the wages
and salaries of Sofia and Semuel shall be owned by them in
equal shares; hence, the cash in the bank from Semuel’s
salaries and wages is co-owned by Semuel and Sofia in equal
shares. Art. 147, FC also provides that the property acquired
by the partners through their work or industry shall be
governed by the rules on co-ownership and in the absence
of proof to the contrary, properties acquired during the
cohabitation shall be presumed to have been obtained by
their joint efforts, work or industry and shall be owned by
them in equal shares. Art. 147, FC provides further that if
the efforts of one of the parties consisted in the care and
maintenance of the family and of the household, he or she is
deemed to have contributed jointly in the acquisition of the
property even if he or she did not participate in the
acquisition by the other party of the said property. Sofia, as
71
a stay-at-home mother, cared for and maintained the family,
consequently, she is deemed to have contributed in the
acquisition of the house and lot. As co-owner, Sofia is
entitled to one half of the property.
Q: X, Y, and Z are siblings who inherited a 10-story
building from their parents. They agreed in writing to
maintain it as a co-owned property for leasing out and
to divide the net profits among themselves equally for
a period of 20 years. On the 8th year, X wanted to get
out of the co-ownership so he could get his 1/3 share in
the property. Y and Z refused, saying X is bound by their
agreement to keep the co-ownership for 20 years. Are Y
and Z correct? Explain. (2015 BAR)
A: Y and Z are partly correct. The law provides that none of
the co-owners shall be obliged to remain in the co-
ownership and it is the right of a co-owner to ask for
partition of the co- ownership anytime. One exception to the
rule is if the co-owners agree to keep the thing undivided
which period shall not exceed 10 years. In this case, the
agreement to keep the thing undivided shall be valid at the
most for ten years. (Art. 494, NCC)
Q: Antonio, Bart, and Carlos are brothers. They
purchased from their parents specific portions of a
parcel of land as evidenced by three separate deeds of
sale, each deed referring to a particular lot in metes and
bounds. When the deeds were presented for
registration, the Register of Deeds could not issue
separate certificates of title due to the absence of a
subdivision plan. The new title had to be issued,
therefore, in the names of the brothers as co-owners of
the entire property. The situation has not change up to
now, but each of the brothers has been receiving rentals
exclusively from the lot actually purchased by him.
Antonio sells his lot to a third person, with notice to his
brothers. To enable the buyer to secure a new title in
his name, the deed of sale was made to refer to an
undivided interest in the property of the seller
(Antonio), with the metes and bound for the lot sold
being stated. Bart and Carlos reacted by signifying their
exercise of their right redemption as co-owners.
Antonio, in his behalf and in behalf of his buyer,
contend that they are no longer co-owners, although
the title covering the property has remained in their
names as such.
May Bart and Carlos still redeem the lot sold by
Antonio? Explain. (2002 BAR)
A: NO, they may not redeem because there was no co-
ownership among Antonio, Bart, and Carlos to start with.
Their parents already partitioned the land in selling
separate portions to them. (Si v. Court of Appeals, G.R. No.
122047, 12 Oct. 2000)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: Senen and Peter are brothers. Senen migrated to
Canada early while still a teenager. Peter stayed in
Bulacan to take care of their widowed mother and
continued to work on the Family farm even after her
death. Returning to the country some thirty years after
he had left, Senen seeks a partition of the farm to get his
share as the only co-heir of Peter. Peter interposes his
opposition, contending that acquisitive prescription
has already set in and that estoppel lies to bar the action
for partition, citing his continuous possession of the
property for at least 10 years, for almost 30 years in
fact. It is undisputed that Peter has never openly
claimed sole ownership of the property. If he ever had
the intention to do so, Senen was completely ignorant
of it. Will Senen’s action prosper? Explain. (2002, 2000
BAR)
A: YES, Senen’s action will prosper. Art. 494 of the NCC
provides that “no prescription shall run in favor of a co-
owner or co-heir against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the co-ownership
nor notified Senen of his having repudiated the same.”
Q: In 1955, Ramon and his sister Rosario inherited a
parcel of land in Albay from their parents. Since Rosario
was gainfully employed in Manila, she left Ramon alone
to process and cultivate the land. However, Ramon
never shared the harvest with Rosario and was even
able to sell one- half of the land in 1985 by claiming to
be the sole heir of his parents. Having reached
retirement age in 1990, Rosario returned to the
province and upon learning what had transpired,
demanded that the remaining half of the land be given
to her as her share. Ramon opposed, asserting that he
has already acquired ownership of the land by
prescription, and that Rosario is barred by laches from
demanding partition and reconveyance. Decide the
conflicting claims. (2000 BAR)
A: Ramon is wrong on both counts: prescription and laches.
His possession as co-owner did not give rise to acquisitive
prescription. Possession by a co-owner is deemed not
adverse to the other co-owners but is, on the contrary,
deemed beneficial to them. (Pangan v. Court of Appeals, G.R.
No. L-39299, 18 Oct. 1988) Ramon’s possession will become
adverse only when he has repudiated the co-ownership and
such repudiation was made known to Rosario. Assuming
that the sale in 1985 where Ramon claimed he was the sole
heir of his parents amounted to repudiation of the co-
ownership; the prescriptive period began to run only from
that time. Not more than 30 years having lapsed since then,
the claim of Rosario has not yet prescribed. The claim of
laches is not also meritorious. Until the repudiation of the
co-ownership was made known to the other co- owners, no
right has been violated for the said co-owners, no right has
been violated for the said co-owners to vindicate. Mere
delay in vindicating the right, standing alone, does not
constitute laches.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
Q: Ambrosio died, leaving his three daughters, Belen,
Rosario and Sylvia a hacienda which was mortgaged to
the Philippine National Bank due to the failure of the
daughters to pay the bank, the latter foreclosed the
mortgage, and the hacienda was sold to it as the highest
bidder. Six (6) months later, Sylvia won the grand prize
at the lotto and used part of it to redeem the hacienda
from the bank.
Thereafter, she took possession of the hacienda and
refused to share its fruits with her sisters, contending
that it was owned exclusively by her, having bought it
from the bank with her own money. Is she correct or
not? (2000, 1993 BAR)
A: Sylvia is not correct. The three (3) daughters are the co-
owners of the hacienda being the only heirs of Ambrosio.
When the property was foreclosed, the right of redemption
belongs also to the three daughters. When Sylvia redeemed
the entire property before the lapse of the redemption
period, she also exercised the right of redemption of her co-
owners on their behalf. As such, she is holding the shares of
her two sisters in the property and all the fruits
corresponding thereto, in trust for them. Redemption by
one co-owner inures to the benefit of all. (Adille v. Court of
Appeals, G.R. No. L-44546, 29 Jan. 1988) Sylvia, however, is
entitled to be reimbursed the shares of her two sisters in the
redemption price.
Q: Juan and his sister Juana inherited from their mother
two parcels of farmland with exactly the same areas.
For convenience, the Torrens certificates of title
covering both lots were placed in Juan’s name alone. In
1996, Juan sold to an innocent purchaser one parcel in
its entirety without the knowledge and consent of
Juana, and wrongfully kept for himself the entire price
paid. Since the two lots have the same area, suppose
Juana files a complaint to have herself declared sole
owner of the entire remaining second lot, contending
that her brother had forfeited his share thereof by
wrongfully disposing of her undivided share in the first
lot, will the suit prosper? (1998 BAR)
A: Juana’s suit to have herself declared as sole owner of the
entire remaining area will not prosper because while Juan’s
act in selling the other lot was wrongful, it did not have the
legal effect of forfeiting his share in the remaining lot.
However, Juana can file an action against Juan for partition
or termination of the co-ownership with a prayer that the
lot sold be adjudicated to Juan, and the remaining lot be
adjudicated and reconveyed to her.
Q: A, B, and C are the co-owners in equal shares of a
residential house and lot. During their co-ownership,
the following acts were respectively done by the co-
owners:
1. A undertook the repair of the foundation of
the house, then tilting to one side, to prevent
the house from collapsing.
2. B and C mortgaged the house and lot to
72
 QuAMTO (1987-2022)
secure a loan.
3. B engaged a contractor to build a concrete E. POSSESSION
fence all around the lot. (2017, 2013, 2012, 2011, 2008, 2007, 2006, 2000,
4. C built a beautiful grotto in the garden. 1998, 1997, 1991, 1990 BAR)
5. A and C sold the land to X for a very good
price. (1992 BAR)
Q: Distinguish between possession and occupation as
(a) Is A’s sole decision to repair the foundation of
these terms are commonly used in Book II and Book III
the house binding on B and C? May A require B
of the NCC. (2007, 1997 BAR)
and C to contribute their 2/3 share of the
expense? Reasons.
A: Occupation is a mode of acquiring dominion by the
seizure of corporeal things which have no owner, with the
A: YES. A’s sole decision to repair the foundation is binding
intention of acquiring the ownership thereof. It is an
upon B and C. B and C must contribute 2/3 of the expense.
original mode of acquiring ownership upon seizure of a res
Each co-owner has the right to compel the other co-owners
nullius by the occupant who has the intention to become the
to contribute to the expense of preservation of the thing
owner thereof.
(the house) owned in common in proportion to their
respective interests. (Arts. 485 and 488, NCC)
Possession, on the other hand, is the holding of a thing or
the enjoyment of a right. Possession may be the real right of
(b) What is the legal effect of the mortgage contract
possession or jus possessionis or it can be merely the right to
executed by B and C? Reasons.
possess or jus possidendi, which are among the basic rights
of ownership. If the real right of possession is possession in
A: The mortgage shall not bind the 1/3 right and interest of
the concept of owner, but subject to certain limitations, it
A and shall be deemed to cover only the rights and interests
may ripen into full ownership of the thing or property right
of B and C in the house and lot. The mortgage shall be
through acquisitive prescription depending on whether it is
limited to the portion (2/3) which may be allotted to B and
a case of ordinary or extraordinary prescription and
C in the partition. (Art. 493, NCC)
whether the property is movable or immovable.

(c) Is B’s sole decision to build the fence binding

upon A and C? May B require A and C to 1. POSSESSION IN THE CONCEPT OF A HOLDER
contribute their 2/3 share of the expense? (2011 BAR)
Reasons.
2. POSSESSION IN THE CONCEPT OF AN OWNER
A: B’s sole decision to build the concrete fence is not binding (2008 BAR)
upon A and C. Expenses to improve the thing owned in
common must be decided upon by a majority of the co-
owners who represent the controlling interest. (Arts. 489 3. RELEVANCE OF GOOD FAITH AND BAD FAITH
and 492, NCC) (2013, 2012 BAR)

(d) Is C’s sole decision to build the grotto binding
upon A and B? May C require A and B to
contribute their 2/3 share of the expense?
Reasons.
A: C’s sole decision to build the grotto is not binding upon A
and B who cannot be required to contribute to the expenses
for the embellishment of the thing owned in common if not
decided upon by the majority of the co-owners who
represent the controlling interest. (Arts. 489 and 492, NCC)
(e) What are the legal effects of the contract of sale
executed by A, C and X? Reasons.
A: The sale to X shall not bind the 1/3 share of B and shall
be deemed to cover only the 2/3 share of A and C in the land.
(Art. 493, NCC) B shall have the right to redeem the 2/3
share sold to X by A and C since X is a third person. (Art.
1620, NCC)
Which of the following statements is wrong? (2012
BAR)
A) The possessor in bad faith shall reimburse the
fruits received and those which the legitimate
possessor could have received.
B) The possessor in bad faith has right of
reimbursement for necessary expenses and
those for the production, gathering and
preservation of the fruits.
C) The possessor in bad faith is not entitled to a
refund of ornamental expenses.
D) The possessor in bad faith is entitled to a refund
of useful expenses.
A: D. (UPLC Suggested Answers)

73 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: Betty entrusted to her agent, Aida, several pieces of
jewelry to be sold on commission with the express F. USUFRUCT
obligation to turn over to Betty the proceeds of the sale, (2019, 2018, 2017, 1998, 1997, 1996 BAR)
or to return the jewelries if not sold in a month's time.
Instead of selling the jewelries, Aida pawned them with
the Tambunting Pawnshop, and used the money for
Q: Distinguish antichresis from usufruct. (2017 BAR)
herself. Aida failed to redeem the pawned jewelries and
after a month, Betty discovered what Aida had done.
A:
Betty brought criminal charges which resulted in Aida's
1. Antichresis is a real security transaction wherein
conviction for estafa. Betty thereafter filed an action
the creditor acquires the right to receive the fruits
against Tambunting Pawnshop for the recovery of the
of an immovable of his debtor, and the obligation to
jewelries. Tambunting raised the defense of ownership,
apply them to the payment of the interest, if owing,
additionally arguing that it is duly licensed to engage in
and thereafter to the principal of his credit. (Art.
the pawnshop and lending business, and that it
2132, NCC) On the other hand, a usufruct is a real
accepted the mortgage of the jewelry in good faith and
right which authorizes its holder to enjoy the
in the regular course of its business. If you were the
property of another with the obligation of
judge, how will you decide the case? (2013 BAR)
preserving its form and substance, unless
otherwise provided.
(A) I will rule in favor of Betty. My ruling is based
on the Civil Code provision that one who has
2. Antichresis is always created by contract, while
lost any movable or has been unlawfully
usufruct need not arise from contract, because it
deprived thereof may recover it from the
may also be constituted by law or by other acts
person in possession of the same. Tam
inter vivos, such as donation, or in a last will and
bunting's claim of good faith is inconsequential.
testament, or by prescription.
(B) I will rule in favor of Betty. Tambunting's claim
of good faith pales into insignificance in light of
3. The subject matter of antichresis is always a real
the unlawful deprivation of the jewelries.
property while the subject matter of usufruct may
However, equity dictates that Tambunting must
either be real property or personal property.
be reimbursed for the pawn value of the
jewelries.
4. Both create real rights, but antichresis is an
(C) I will rule in favor of Tambunting. Its good faith
accessory contract, while usufruct when created by
takes precedence over the right of Betty to
contract is a principal contract.
recover the jewelries.
(D) I will rule in favor of Tambunting. Good faith is
5. During the usufruct, the fruits belong to the
always presumed. Tambunting's lawful
usufructuary not the naked owner, while the
acquisition in the ordinary course of business
antichretic creditor has the right to receive the
coupled with good faith gives it legal right over
fruits with the obligation to apply the fruits to the
the jewelries.
interest, if owing, and thereafter to the principal of
the credit. (Art. 2132, NCC)
A: A. (UPLC Suggested Answers)
6. In antichresis, the amount of the principal and the
4. RULES FOR MOVABLES interest charge must be in writing in order to be
valid (Art. 2134, NCC) while there is no particular
TRUE OR FALSE. Possession of a movable property is form required to constitute a valid usufruct.
lost when the location of the said movable is unknown
to the owner. (2017 BAR) Q: Distinguish usufruct from commodatum and state
whether these may be constituted over consumable
A: FALSE. Article 556 of the Civil Code provides that the goods. (1998 BAR)
possession of movables is not deemed lost so long as they
remain under the control of the possessor, even though for A: Usufruct is a right given to a person (usufructuary) to
the time being he may not know their whereabouts. enjoy the property of another with the obligation of
Possession of a movable, therefore, is lost only when preserving its form and substance. (Art. 562, NCC) On the
possessor loses control over it. (UPLC Suggested Answers) other hand, commodatum is a contract by which one of the
parties (bailor) delivers to another (bailee) something not
consumable so that the latter may use it for a certain time
and return it.

U N I V E R S IT Y O F S A N T O T O M A S 74
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
In usufruct, the usufructuary gets the right to the use and to
the fruits of the same, while in commodatum, the bailee only
acquires the use of the thing loaned but not its fruits.
Usufruct may be constituted on the whole or a part of the
fruits of the thing. (Art. 564, NCC) It may even be constituted
over consumables like money. (Estate of the deceased
Rosendo Hernaez v. Veloso, G.R. No. L-29158, 29 Dec. 1928)
Whereas, in commodatum, consumable goods may be
subject thereof only when the purpose of the contract is not
the consumption of the object, as when it is merely for
exhibition. (Art. 1936, NCC)
1. RIGHTS AND OBLIGATIONS OF THE USUFRUCTUARY
(2019, 2018, 1996 BAR)
Q: Ms. U is a usufructuary of a piece of land owned by
Mr. L. During the existence of the usufruct, Ms. U
introduced various useful improvements on the land.
Upon termination of the usufruct, Mr. L requested Ms. U
to remove the said improvements, but Ms. U refused,
demanding instead that Mr. L reimburse her the value
of the same. Is Ms. U’s demand proper? Explain. (2019
BAR)
A: NO, the demand is not proper. The NCC provides that the
usufructuary may make on the property held in usufruct
any useful improvements, or expenses for mere pleasure,
which they may deem proper, provided they do not alter its
form or substance; but they shall have no right to be
indemnified therefor. They may, however, remove such
improvements should it be possible to do so without injury
to the property. (Art. 579, NCC)
Ms. U, thus, has no right to be indemnified for any
improvements which might have made on the land held in
usufruct. She may only remove them should it be possible
to do so without injury to the property.
Q: Bartolome constructed a chapel on the land of Eric.
What are Bartolome’s rights if he was a usufructuary of
the land? (1996 BAR)
A: Bartolome has the right to remove the improvement if it
is possible to do so without causing damage to the property.
(Art. 579, NCC) He may also set-off the improvement against
any damages which the property held in usufruct suffered
because of his act or the acts of his assignee. (Art. 580, NCC)
2. CLASSES OF USUFRUCT
75
3. EXTINGUISHMENT OF THE USUFRUCT
(2018, 1997 BAR)
Q: Sofronio was a married father of two when he had a
brief fling with Sabrina, resulting in her pregnancy and
the birth of their son Sinforoso. Though his wife knew
nothing of the affair, Sofronio regretted it but secretly
provided child support for Sinforoso. Unfortunately,
when Sinforoso was 10 years old, Sofronio died. Only
Sofronio's father, Salumbides, knew of Sabrina and
Sinforoso. For the purpose of providing support to
Sinforoso, Salumbides gave Sabrina usufructuary rights
over one of his properties - a house and lot - to last until
Sinforoso reaches the age of majority. Sabrina was
given possession of the property on the basis of caucion
juratoria. Two (2) years after the creation of the
usufruct, the house accidentally burned down, and
three (3) years thereafter, Sinforoso died before he
could reach the age of 18. (2018 BAR)
(a) Will the usufruct continue after the house has
burned down?
A: YES, the usufruct will continue after the house was
burned. If the usufruct is constituted on immovable
property of which a building forms part, and the latter
should be destroyed in any manner whatsoever, the
usufructuary shall have a right to make use of the land and
the materials. (Art. 607, NCC) The usufruct over the land and
the materials continues. The thing was lost only in part, the
right continues on the remaining parts. (Art. 604, NCC)
(b) If yes, will it continue after Sinforoso's death?
A: NO, it will be extinguished after Sinforoso’s death. A
usufruct granted for the time that may elapse before a third
person attains a certain age, shall subsist for the number of
years specified, even if the third person should die before
the period expires, unless such usufruct has been expressly
granted only in consideration of the existence of such
person or contrary intention clearly appears. (Arts. 603 &
606, NCC) The circumstances given show that the usufruct
was established by Salumbides in consideration of the
existence of Sinfroso. It was meant for his support; hence,
his death extinguished the usufruct even though he died
before reaching the age of majority.
Q: On 01 Jan. 1980, Minerva, the owner of a building,
granted Petronila a usufruct over the property until 01
June 1998 when Manuel, a son of Petronila, would have
reached his 30th birthday. Manuel, however, died on 01
June 1990 when he was only 26 years old. Minerva
notified Petronila that the usufruct had been
extinguished by the death of Manuel and demanded
that the latter vacate the premises and deliver the same
to the former. Petronila refused to vacate the place on
the ground that the usufruct in her favor would expire
only on 01 June 1998 when Manuel would have reached
his 30th birthday and that the death of Manuel before
his 30th birthday did not extinguish the usufruct.
U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
Whose contention should be accepted? (1997 BAR)
A: Petronila's contention is correct. Under Art. 606 of the
NCC, a usufruct granted for the time that may elapse before
a third person reaches a certain age shall subsist for the
number of years specified even if the third person should
die unless there is an express stipulation in the contract that
states otherwise. In the case at bar, there is no express
stipulation that the consideration for the usufruct is the
existence of Petronila's son. Thus, the general rule and not
the exception should apply in this case.
G. EASEMENTS
(2022, 2018, 2017, 2014, 2013, 2010, 2009, 2005,
2001, 1998, 1996, 1995 BAR)
Q: What is easement? Distinguish easement from
usufruct. (1995 BAR)
A: An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable
belonging to a different owner. (Art. 613, NCC) Usufruct
gives a right to enjoy the property of another with the
obligation of preserving its form and substance, unless the
title constituting it or the law otherwise provides. (Art. 562
NCC) An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable
belonging to a different owner. (Art. 613, NCC)
Q: Can there be: (1995 BAR)
(a) An easement over a usufruct?
A: There can be no easement over a usufruct. Since an
easement may be constituted only on a corporeal
immovable property, no easement may be constituted on a
usufruct which is not a corporeal right.
(b) A usufruct over an easement?
A: There can be no usufruct over an easement. While a
usufruct may be created over a right, such right must have
an existence of its own independent of the property. A
servitude cannot be the object of a usufruct because it has
no existence independent of the property to which it
attaches.
(c) An easement over another easement?
A: There can be no easement over another easement for the
same reason as in (a). An easement, although it is a real right
over an immovable, is not a corporeal right. There is a
Roman maxim which says that: there can be no servitude
over another servitude.
1. CHARACTERISTICS
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
2. KINDS OF EASEMENTS
(2022, 2018, 2017, 2014, 2013, 2010, 2005, 1998,
1996 BAR)
Q: An easement that can be acquired by prescription:
(2014 BAR)
(A) Right of way
(B) Watering of an animal
(C) Lateral and subjacent support
(D) Light and view
A: (D) Light and view. Only continuous and apparent
easements maybe acquired by prescription.
Q: Distinguish between: (1998 BAR)
(a) Continuous and discontinuous easements;
A: Continuous easements are those the use of which is or
may be incessant, without the intervention of any act of
man, while discontinuous easements are those which are
used at intervals and depend upon the acts of man. (Art. 615,
NCC)
(b) Apparent and non-apparent easements; and
A: Apparent easements are those which are made known
and are continually kept in view by external signs that
reveal the use and enjoyment of the same, while non-
apparent easements are those which show no external
indication of their existence. (Art. 615, NCC)
(c) Positive and negative easements.
A: Positive easements are those which impose upon the
owner of the servient estate the obligation of allowing
something to be done or of doing it themselves, while
negative easements are those which prohibit the owner of
the servient estate from doing something which they could
lawfully do if the easement did not exist. (Art. 615, NCC)
EASEMENT RELATING TO RIGHT OF WAY
(2022, 2017, 2013, 2010, 2005, 1996 BAR)
Q: With the intent to develop a subdivision, Oliver
bought a parcel of land adjacent to a subdivision owned
by Phil. Oliver’s land had no direct access to the
highway, as it was blocked by a kamote plantation
owned by Josh. Phil’s subdivision, on the other hand,
already had a direct access to the highway. To facilitate
the release of the license from the Department of
Human Settlements and Urban Development, Oliver
presented a contract to sell between him and Josh over
the kamote plantation, on the representation that he
would construct an access road thereon.
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 QuAMTO (1987-2022)
Pending approval of the license, Oliver sought the
consent of Phil to connect the road that would be built
by him with the main road of Phil’s subdivision. Phil
allowed him to do this pending their negotiation on the
compensation to be paid. With the eventual grant of the
license, Oliver began the development of his
subdivision. To protect the right of way over Phil’s
subdivision, Oliver was able to cause an annotation of
adverse claim on Phil’s property.
However, when Oliver’s subdivision was already
completed, and with the adverse claim annotated,
Oliver believed that he no longer needed to buy the
kamote plantation and accordingly rescinded the
contract to sell with Josh.
When Oliver and Phil failed to arrive at an agreement
on the consideration for the easement, Phil built a wall
blocking the road constructed by Oliver that connected
Oliver’s subdivision with his. Oliver filed a complaint
seeking the establishment of an easement of right of
way through Phil’s subdivision which Oliver claimed to
be the most adequate and convenient access to the
highway. On the other hand, Phil filed a petition to have
the adverse claim cancelled. (2022 BAR)
a. Is Oliver entitled to a right of way through Phil’s
subdivision? Explain briefly.
A: NO, Oliver is not entitled to a right of way over Phil's
property. To be entitled to the right of way the dominant
estate must prove that it is surrounded by other
immovables without adequate outlet to a public highway;
there must be payment of proper indemnity, the isolation
was not due to the proprietor's own acts, and the easement
is established at a point least prejudicial to the servient
estate where the distance from the dominant estate to the
public highway may be the shortest. Oliver has not proven
the concurrence of these requisites for him to be entitled to
the right of way over Phil's estate. (Central Bar Q&A by
Paguirigan, 2023)
b. Is there basis to have the adverse claim
cancelled? Explain briefly.
A: YES, there is a basis to cancel the adverse claim
annotated by Oliver. Under the law, an annotation of
adverse claim is proper if one claims any part or interest in
registered land adverse to the registered owner arising
subsequent to the date of the original registration. (Sec. 70,
P.D. 1529). (Central Bar Q&A by Paguirigan, 2023)
Q: Tyler owns a lot that is enclosed by the lots of Riley
to the North and East, of Dylan to the South, and of Reece
to the West. The current route to the public highway is
a kilometer’s walk through the northern lot of Riley, but
the route is a rough road that gets muddy during the
rainy season and is inconvenient because it is only 2.5
meters wide. Tyler’s nearest access to the public
highway would be through the southern lot of Dylan.
77
May Dylan be legally required to afford to Tyler a right
of way through his property? Explain your answer.
(2017 BAR)
A: Dylan may not be legally required to afford Tyler a right
of way through his property, because Tyler already has an
adequate outlet to the public highway through his Riley’s
lot. One of the requisites for a compulsory grant of right of
way is that the estate of the claimant of a right of way must
be isolated and without adequate outlet to a public highway.
The true standard for the grant of compulsory right of way
is “adequacy” of outlet going to a public highway and not the
convenience of the dominant estate. In the case at bar, there
is already an existing adequate outlet from the dominant
estate to a public highway. Even if said outlet be
inconvenient, the need to open up another legal easement
or servitude is entirely unjustified. (Art. 649, NCC; Dichoso
Jr. v. Marcos, G.R. No. 180282, 11 Apr. 2011; Costabella Corp.
v. Court of Appeals, G.R. No. 80511, 25 Jan. 1991)
Q: In 2005, Andres built a residential house on a lot
whose only access to the national highway was a
pathway crossing Brando's property. Andres and
others have been using this pathway (pathway A) since
1980. In 2006, Brando fenced off his property, thereby
blocking Andres' access to the national highway.
Andres demanded that part of the fence be removed to
maintain his old access route to the highway (pathway
A), but Brando refused, claiming that there was another
available pathway (pathway B) for ingress and egress
to the highway. Andres countered that pathway B has
defects, is circuitous, and is extremely inconvenient to
use. To settle their dispute, Andres and Brando hired
Damian, a geodetic and civil engineer, to survey and
examine the two pathways and the surrounding areas,
and to determine the shortest and the least prejudicial
way through the servient estates. After the survey, the
engineer concluded that pathway B is the longer route
and will need improvements and repairs but will not
significantly affect the use of Brando's property. On the
other hand, pathway A that had long been in place, is the
shorter route but would significantly affect the use of
Brando's property.
In light of the engineer's findings and the circumstances
of the case, resolve the parties' right of way dispute.
(2013, 1996 BAR)
A: I will rule in favor of Brando. The easement of right of
way should be established at a point least prejudicial to the
servient estate where the distance from the dominant
estate to the public highway may be the shortest. (Art. 650,
NCC) If these two conditions do not concur in one estate, the
criterion of least prejudice prevails over shortest distance.
(Quimen v. Court of Appeals, G.R. No. 112331, 29 May 1996)
In this case, to establish the easement on the property of
Brando would significantly affect his use of his property
whereas while Pathway B may prove to be the longer route,
it will cause least prejudice to Brando. Andres’ argument
U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
that Pathway B is circuitous and inconvenient to use should
not be given weight because the true test of the
establishment of an easement is adequacy. Convenience of
the dominant estate has never been the gauge for the
establishment of the easement. (Costabella Corporation v.
Court of Appeals, G.R. No. 80511, 25 Jan. 1991; Cristobal vs.
Ledesma, G.R. No. 125339, 22 June 1998)
Q: Franz was the owner of Lot E which was surrounded
by four (4) lots one of which – Lot C – he also owned. He
promised Ava that if she bought Lot E, he would give her
a right of way in Lot C. Convinced, Ava bought Lot E and,
as promised, Franz gave her a right of way in Lot C. Ava
cultivated Lot E and used the right of way granted by
Franz. Ava later found gainful employment abroad. On
her return after more than 10 years, the right of way
was no longer available to her because Franz had in the
meantime sold Lot C to Julia who had it fenced. (2010
BAR)
(a) Does Ava have a right to demand from Julia the
activation of her right of way? Explain.
A: YES. Ava has the right to demand from Julia the activation
of the right of way, for the following reasons:
1. The easement of the right of way is a real right
which attaches to, and is inseparable from, the
estate to which it belongs.
2. The sale of the property includes the easement or
servitude, even if the deed of sale is silent on the
matter.
3. The vendee of the property in which a servitude or
easement exists cannot close or put obstructions
thereon to prevent the dominant estate from using
it.
4. Ava’s working abroad for more than 10 years
should not be construed as non-user, because it
cannot be implied from the fact that she or those
she left behind to cultivate the lot no longer use the
right of way.
5. Renunciation or waiver of an easement must be
specific, clear, express and made in a public
instrument in accordance of Art. 1358 of the NCC.
(b) Assuming Ava opts to demand a right of way
from any of the owners of Lots A, B, and D, can
she do that? Explain.
A: YES. Ava has the option to demand a right of way on any
of the remaining lots of Franz more so after Franz sold lot C
to Julia. The essential elements of a legal right of way under
Arts. 649 and 650 of the NCC are complied with.
Q: Don was the owner of an agricultural land with no
access to a public road. He had been passing through
the land of Ernie with the latter's acquiescence for over
20 years. Subsequently, Don subdivided his property
into 20 residential lots and sold them to different
persons. Ernie blocked the pathway and refused to let
the buyers pass through his land. (2005 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
(a) Did Don acquire an easement of right of way?
Explain.
A: Don did not acquire an easement of right of way. His
passage through Ernie’s land was by mere acquiescence or
tolerance. He cannot claim to have acquired the easement of
right of way by prescription, because this easement is
discontinuous although apparent. Only continuous and
apparent easements can be acquired by prescription of 10
years of uninterrupted use and enjoyment.
(b) What are the rights of the lot buyers, if any?
Explain.
A: Prior to the grant of an easement, the buyers of the
dominant estate have no other right than to compel grant of
easement of right of way. Since the properties of the buyers
are surrounded by other immovable and has no adequate
outlet to a public highway and the isolation is not due to
their acts, buyers may demand an easement of a right of way
provided proper indemnity is paid and the right of way
demanded is the shortest and least prejudicial to Ernie.
Q: David is the owner of the subdivision in Sta. Rosa,
Laguna, without an access to the highway. When he
applied for a license to establish the subdivision, David
represented that he will purchase a rice field located
between his land and the highway, and develop it into
an access road. But when the license was already
granted, he did not bother to buy the rice field, which
remains unutilized until the present. Instead, he chose
to connect his subdivision with the neighboring
subdivision of Nestor, which has access to the highway.
Nestor allowed him to do this, pending negotiations on
the compensation to be paid. When they failed to arrive
at an agreement, Nestor built a wall across the road
connecting with David's subdivision. David filed a
complaint in court, for the establishment of an
easement of right of way through the subdivision of
Nestor which he claims to be the most adequate and
practical outlet to the highway. (1996 BAR)
(a) What are the requisites for the establishment
of a compulsory easement of a right of way?
A: The requisites for a compulsory easement of right of way
are: (a) the dominant estate is surrounded by other
immovables and is without an adequate outlet to a public
street or highway; (b) proper indemnity must be paid; (c)
the isolation must not be due to the acts of the owner of the
dominant estate; and (d) the right of way claimed is at a
point least prejudicial to the servient estate and, insofar as
is consistent with this rule, where the distance to the street
or highway is shortest. (Art. 650, NCC)
(b) Is David entitled to a right of way in this case?
Why or why not?
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 QuAMTO (1987-2022)
A: NO, David is not entitled to the right of way being
claimed. The isolation of his subdivision was due to his own
act or omission because he did not develop into an access
road the rice field which he was supposed to purchase
according to his own representation when he applied for a
license to establish the subdivision. (Floro v. Llenado, G.R.
No. 75723. 02 June 1995)
EASEMENT OF LIGHT AND VIEW
(2022 BAR)
Q: The Sps. Santos are the registered owners of Lot 2
located in Umaga Subdivision, Caramoan, Camarines
Sur, covered by TCT No. 1369. Lot 2, which has been
occupied by the Sps. Santos for about 11 years, has a
one-storey residential house which was already
erected thereon when Lot 2 was purchased by them
from the Sps. Cruz in 2005. At the time of the acquisition
of Lot 2, the adjoining lot, Lot 1, which was also owned
by the Sps. Cruz, was an idle land without any
improvements. Lot 1 remained empty until the spouses
Cruz started the construction of a two-storey
residential house thereon in 2018.
The house constructed on Lot 1 being taller than the
Sps. Santos’ one-storey residential house, the Sps.
Cruz’s two-storey residential house obstructed the
light, air, and view of the Sps. Santos’ residential house.
The Sps. Santos bemoaned how, prior to the
construction on Lot 1, they received enough bright and
natural light from their windows. The construction
rendered their house dark such that they are unable to
do their normal activities in their house without
switching on their lights.
Have the Sps. Santos acquired an easement of light and
view with respect to Lot 1 owned by the spouses Cruz?
Explain briefly. (2022 BAR)
A: YES, the Sps. Santos have acquired an easement of light
and view with respect to Lot 1 owned by Sps. Cruz. As a
general rule, a negative easement of light and view cannot
be acquired by prescription except where a sufficient time
of possession has elapsed after the owner of the dominant
estate, by a formal act, has prohibited the owner of the
servient estate from doing something which would be
lawful but for the easement. However, under Art. 624, the
existence of an apparent sign of easement between two
estates, established or maintained by the owner of both,
shall be considered, should either of them be alienated, as a
title in order that the easement may continue actively and
passively, unless, at the time the ownership of the two
estates is divided, the contrary should be provided in the
title of conveyance of either of them, or the sign aforesaid
should be removed before the execution of the deed. Hence,
in accordance with Art. 624 of the NCC, from the time the
Sps. Cruz transferred the subject property to the Sps.
Santos, there arose by title an easement of light and view,
placing a burden on the servient estate, Lot 1, to allow the
Sps. Santos' residence unobstructed access to light and
79
view. (Spouses Garcia vs. Santos and Tan, G.R. No. 228334, 17
June 2019) (Central Bar Q&A by Paguirigan, 2023)
LATERAL AND SUBJACENT SUPPORT
(2018 BAR)
Q: Socorro is the registered owner of Lot A while
Segunda is the registered owner of the adjoining Lot B.
Lot A is located at an elevated plateau of about 15 feet
above the level of Lot B. Since Socorro was allegedly
removing portions of the land and cement that
supported the adjoining property, Segunda caused the
annotation of an adverse claim against 50 sq. m. on Lot
A's TCT, asserting the existence of a legal easement.
Does a legal easement in fact exist? If so, what kind?
(2018 BAR)
A: YES, there exists a legal easement of lateral and subjacent
support in favor of Segunda. Under the Civil Code which
provides that no proprietor shall make such excavations
upon his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support. (Art. 684, NCC)
Although an owner of a parcel of land is the owner of its
surface and everything under it and may make excavations
on his land (Art. 437, NCC), this right is subject to the
limitation that he shall not deprive any adjacent land or
building of sufficient lateral or subjacent support. (Central
Bar Q&A by Paguirigan, 2023)
3. MODES OF ACQUIRING EASEMENTS
(2017, 2014, 2009 BAR)
Q: TRUE or FALSE: Continuous non-apparent easements
can be acquired either through title or by prescription.
(2017 BAR)
A: FALSE. Art. 620 of the NCC provides that continuous and
apparent easement are acquired either by virtue of a title or
by prescription of ten years. Continuous non-apparent
easements and discontinuous ones, whether apparent or
not, maybe acquired only by virtue of a title. (Art. 622, NCC)
An easement must be both continuous and apparent to be
subject to acquisition by prescription. (UPLC Suggested
Answers)
4. EFFECTS OF EASEMENTS
(2010 BAR)
5. EXTINGUISHMENT OF EASEMENTS
(2001 BAR)
Q: Emma bought a parcel of land from Equitable-PCI
Bank, which acquired the same from Felisa, the original
owner. Thereafter, Emma discovered that Felisa had
granted a right of way over the land in favor of the land
of Georgina, which had no outlet to a public highway,
but the easement was not annotated when the servient
estate was registered under the Torrens system. Emma
then filed a complaint for cancellation of the right of
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
way, on the ground that it had been extinguished by
such failure to annotate.
How would you decide the controversy? (2001 BAR)
A: The complaint for cancellation of easement of right of
way must fail. The failure to annotate the easement upon
the title of the servient estate is not among the grounds for
extinguishing an easement under Art. 631 of the NCC. Under
Art. 617 of the NCC, easements are inseparable from the
estate to which they actively or passively belong. Once it
attaches, it can only be extinguished under Art. 631, and
they exist even if they are not stated or annotated as an
encumbrance on the Torrens title of the servient estate.
(Tolentino, 1987)
III. DIFFERENT MODES OF ACQUIRING OWNERSHIP
A. OCCUPATION
(2011, 2008, 2007 BAR)
Q: X bought a land from Y, paying him cash. Since they
were friends, they did not execute any document of sale.
After 7 years, the heirs of X asked Y to execute a deed of
absolute sale to formalize the verbal sale to their father.
Unwilling to do so, X’s heirs filed an action for specific
performance against Y. Will their action prosper?
(2011 BAR)
(A) No, after more than 6 years, the action to
enforce the verbal agreement has already
elapsed.
(B) No, since the sale cannot under the Statute of
Frauds be enforced.
(C) Yes, since X bought the land and paid Y for it.
(D) Yes, after full payment, the action became
imprescriptible.
A: (A) No, after more than 6 years, the action to enforce the
verbal agreement has already elapsed.
B. TRADITION
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
C. DONATION
(2022, 2020-21, 2015, 2014, 2013, 2011, 2009, 2007,
2006, 2003, 1998, 1993, 1991, 1990 BAR)
1. FEATURES
(2020-21, 2011, 2003 BAR)
Q: May a person donate something that does not belong
to him? Explain. (2003 BAR)
A: As a general rule, a person cannot donate something
which he cannot dispose of at the time of the donation. (Art.
751, NCC)
Q: In gratitude, the groom’s parents made a donation
of a property in writing to the bride’s parents shortly
before their children’s wedding. The donation was
accepted. What is the nature of the donation? (2011
BAR)
A. It is an ordinary donation since it was not given
to the bride or groom.
B. It is donation propter nuptias since it was
given with the marriage in mind.
C. It is an indirect donation propter nuptias since
the bride would eventually inherit the
property from her parents.
D. It is a remunatory donation.
A: A. (UPLC Suggested Answers)
X and Y were in a live-in relationship for the longest
time, and were already blessed with a child, Z. They
finally decided to get married on March 15, 2020.
When X's parents found about the news, they were
thrilled and thus, donated in favor of Z, the family
heirloom, particularly, a gold ring valued at
₱250,000.00, which X and Y orally accepted on behalf
of their minor child. One day, X and Y got into a serious
quarrel, which resulted in them setting aside their
marriage plans. (2020-21 BAR)
a. Is the donation to Z valid? Explain.
A: No, it is a void donation. This is an ordinary
donation inter vivos, not a donation proper nuptias. The
Civil Code provides that if the value of the personal
property donated exceeds five thousand pesos, the
donation and the acceptance shall be made in writing;
otherwise, the donation shall be void. A piece of jewelry
like the family heirloom here which is a gold ring, valued at
P250,000.00, is a personal property. Here, the acceptance
was made orally; therefore, the donation is void. (UPLC
Suggested Answers)
80
 QuAMTO (1987-2022)
b. Assuming that the donation to Z is valid, may
X's parents revoke the donation on the ground
that the marriage of X with Y did not push
through? Explain.
A: NO, because it is an ordinary donation, not a
donation propter nuptias. The ground that the marriage
did not push through may only be raised to revoke
donations by reason of marriage which is defined by Art.
126 of the FC, as those which are made before its
celebration, in consideration of the same and in favor of
one or both of the future spouses. Here, the donation was
not made in favor of one or both of the future spouses, but
in favor of their child. X’s parents, therefore, cannot revoke
the donation on the ground that the marriage of X with Y
did not push through. (UPLC Suggested Answers)
2. CLASSIFICATIONS
(2007, 1997 BAR)
Q: Illegal and impossible conditions in a simple
donation vs. Illegal and impossible conditions in an
onerous donation (2007 BAR)
A: Illegal and impossible conditions in a simple donation are
considered as not written. Such conditions shall, therefore,
be disregarded but the donation remains valid. (Art. 727,
NCC) On the other hand, illegal and impossible conditions
imposed in an onerous donation shall annul the donation.
(Art. 1183, NCC) This is so because onerous donations are
governed by the law on contracts. (Art. 733, NCC)
Q: Are the effects of illegal and immoral conditions on
simple donations the same as those effects that would
follow when such conditions are imposed on donations
con causa onerosa? (1997 BAR)
A: No, they don't have the same effect. Illegal or impossible
conditions in simple and remuneratory donations shall be
considered as not imposed. Hence the donation is valid. The
donation will be considered as simple or pure. The
condition or mode is merely an accessory disposition, and
its nullity does not affect the donation, unless it clearly
appears that the donor would not have made the donation
without the mode or condition.
Donations con causa onerosa is governed by law on
obligations and contracts, under which an impossible or
Illicit condition annuls the obligation dependent upon the
condition where the condition is positive and suspensive. If
the impossible or illicit condition is negative, it is simply
considered as not written, and the obligation is converted
into a pure and simple one. However, in order that an illegal
condition may annul a contract, the impossibility must exist
at the time of the creation of the obligation; a supervening
impossibility does not affect the existence of the obligation.
(UPLC Suggested Answers)
81
ALTERNATIVE ANSWER:
A: NO. In simple or pure donation, only the illegal or
impossible condition is considered not written but the
donation remains valid and becomes free from conditions.
The condition or mode being a mere accessory disposition.
Its nullity does not affect the donation unless it clearly
appears that the donor would not have made the donation
without the mode or condition. On the other hand, onerous
donation is governed by the rules on contracts. Under Art.
1183, Impossible or illegal conditions shall annul the
obligation which depends upon them. In these cases, both
the obligation and the condition are void. (UPLC Suggested
Answers)
3. DISTINCTIONS BETWEEN MORTIS CAUSA AND INTER
VIVOS DONATIONS
(2013, 2009 BAR)
Q: True or False. A person can dispose of his corpse
through an act inter vivos. (2009 BAR)
A: FALSE. A person cannot dispose of his corpse through an
act inter vivos, i.e., an act to take effect during his lifetime.
Before his death there is no corpse to dispose. But he is
allowed to do so through an act mortis causa, i.e., an act to
take effect upon his death.
Q: Josefa executed a deed of donation covering a one-
hectare rice land in favor of her daughter, Jennifer. The
deed specifically provides that:
"For and in consideration of the love and service Jennifer
has shown and given to me, I hereby freely, voluntarily
and irrevocably donate to her my one-hectare rice land
covered by TCT No. 11550, located in San Fernando,
Pampanga. This donation shall take effect upon my
death."
The deed also contained Jennifer's signed acceptance,
and an attached notarized declaration by Josefa and
Jennifer that the land will remain in Josefa's possession
and cannot be alienated, encumbered, sold or disposed
of while Josefa is still alive. Advise Jennifer on whether
the deed is a donation inter vivos or mortis causa and
explain the reasons supporting your advice. (2013
BAR)
A: The donation is a donation inter vivos. When the donor
intends that the donation shall take effect during the
lifetime of the donor, though the property shall not be
delivered till after the donor’s death, this shall be a donation
inter vivos. (Art. 729, NCC) The NCC prefers inter vivos
transmissions. Moreover, mortis causa donations should
follow the formalities of a will. (Art. 728, NCC) Here, there is
no showing that such formalities were followed. Thus, it is
favorable to Jennifer that the deed is a donation inter vivos.
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 CIVIL LAW
Furthermore, what is most significant in determining the
type of donation is the absence of stipulation that the donor
could revoke the donation. On the contrary, the deeds
expressly declare them to be “irrevocable,” a quality
absolutely incompatible with the idea of conveyances
mortis causa where revocability is the essence of the act, to
the extent that a testator cannot lawfully waive or restrict
his right of revocation. The provisions of the deed of
donation which state that the same will only take effect
upon the death of the donor and that there is a prohibition
to alienate, encumber, dispose, or sell the same should be
harmonized with its express irrevocability. (Austria-Magat
v. Court of Appeals, G.R. No. 106755, 01 Feb. 2002)
4. FORM
(2015, 2014, 2007, 1998, 1993, 1990 BAR)
Maria can set up the defense that the action has
prescribed. An action for revocation of the donation on the
ground that it impaired the legitime of a compulsory heir
may only be filed within 10 years from the time the cause
of action accrues which is at the time of the death of
Jose. The facts are not clear as to when Jose died but on the
assumption that he died ten years prior to the filing of the
action, the same has clearly prescribed. (UST Bar Q&A
Suggested Answers, 2015)
Q: The Roman Catholic Church accepted a donation of a
real property located in Lipa City. A deed of donation
was executed, signed by the donor, Don Mariano, and
the donee, the Church, as represented by Fr. Damian.
Before the deed could be notarized, Don Mariano died.
Is the donation valid? (2014 BAR)

A: The donation is void. The donation of an immovable

Q: Jose, single, donated a house and lot to his only
property must be in a public instrument in order for it to be
niece, Maria, who was of legal age and who accepted
valid. In this case, the donor died even before the
the donation. The donation and Maria's acceptance
notarization of the deed of donation. Hence, it does not
thereof were evidenced by a Deed of Donation. Maria
satisfy the requirement of being in a public instrument for
then lived in the house and lot donated to her,
the donation to be valid.
religiously paying real estate taxes thereon. Twelve
years later, when Jose had already passed away, a
Q: In 1986, Jennifer and Brad were madly in love. In
woman claiming to be an illegitimate daughter of Jose
1989, because a certain Picasso painting reminded
filed a complaint against Maria. Claiming rights as an
Brad of her, Jennifer acquired it and placed it in his
heir, the woman prayed that Maria be ordered to
bedroom. In 1990, Brad and Jennifer broke up. While
reconvey the house and lot to Jose's estate. In her
Brad was mending his broken heart, he met Angie and
complaint she alleged that the notary public who
fell in love. Because the Picasso painting reminded
notarized the Deed of Donation had an expired
Angie of him, Brad in his will bequeathed the painting
notarial commission when the Deed of Donation was
to Angie. Brad died in 1995. Saddened by Brad's death,
executed by Jose. Can Maria be made to reconvey the
Jennifer asked for the Picasso painting as a
property? What can she put up as a defense? (2015
remembrance of him. Angie refused and claimed that
BAR)
Brad, in his will, bequeathed the painting to her.

A: NO, Maria cannot be compelled to reconvey the

Is Angie correct? Why or why not? (2007 BAR)
property. The Deed of Donation was void because it was
not considered a public document. However, a void
A: NO, Angie is not correct. The Picasso painting is not given
donation can trigger acquisitive prescription. (Solis v. CA,
or donated by Jennifer to Brad. She merely “placed it in his
G.R. No. L-46753-54, 25 Aug. 1989; Doliendo v. Biarnesa, G.R.
bedroom.” Hence, she is still the owner of the painting. Not
No. L-2765, 27 Dec. 1906) The void donation has a quality
being the owner of the Picasso painting, Brad cannot validly
of titulo colorado enough for acquisitive prescription
bequeath the same to Angie. (Art. 930, NCC) Even assuming
especially since 12 years had lapsed from the deed of
that the painting was impliedly given or donated by Jennifer
donation. (UST Bar Q&A Suggested Answers, 2015)
to Brad, the donation is nevertheless void for not being in
writing. The Picasso painting must be worth more than
ALTERNATIVE ANSWER:
5,000 pesos. Under Art. 748, NCC, the donation and
acceptance of a movable worth more than 5,000 pesos must
YES, Maria can be made to reconvey the property. The law
be in writing, otherwise the donation is void, Jennifer
provides that no person may give or receive by way of
remained the owner of the Picasso painting and Brad could
donation more than what he may give or receive by will.
not have validly disposed of said painting in favor of Angie
On the assumption that the property donated to Maria is
in his will.
the only property of Jose, the legitime of his illegitimate
child would be impaired if Maria would be allowed to keep
Q: Anastacia purchased a house and lot on installments
the entire property. After taking into account the value of
at a housing project in Quezon City. Subsequently, she
the property, Maria can be made to reconvey the property
was employed in California and a year later, she
to the extent necessary to satisfy the legitime of Jose’s
executed a deed of donation, duly authenticated by the
illegitimate daughter provided that the woman claiming to
Philippine Consulate in Los Angeles, California,
be Jose’s child can prove her filiation to the deceased.
donating the house and lot to her friend Amanda. The
latter brought the deed of donation to the owner of the

U N I V E R S IT Y O F S A N T O T O M A S 82
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
project and discovered that Anastacia left unpaid
installments and real estate taxes. Amanda paid these
so that the donation in her favor can be registered in the
project owner's office. Two months later, Anastacia
died, leaving her mother Rosa as her sole heir.
Rosa filed an action to annul the donation on the ground
that Amanda did not give her consent in the deed of
donation or in a separate public instrument. Amanda
replied that the donation was an onerous one because
she had to pay unpaid installments and taxes; hence her
acceptance may be implied. Who is correct? (2000 BAR)
A: Rosa is correct because the donation is void. The
property donated was an immovable. For such donation to
be valid, Art. 749 of the NCC requires both the donation and
the acceptance to be in a public instrument. There being no
showing that Amanda's acceptance was made in a public
instrument, the donation is void. The contention that the
donation is onerous and therefore, need not comply with
Art. 749 for validity is without merit. The donation is not
onerous because it did not impose on Amanda the
obligation to pay the balance on the purchase price or the
arrears in real estate taxes. Amanda took it upon herself to
pay those amounts voluntarily. For a donation to be
onerous, the burden must be imposed by the donor on the
donee. In the problem, there is no such burden imposed by
the donor on the donee. The donation not being onerous, it
must comply with the formalities of Art. 749, NCC.
Q: Ernesto donated in a public instrument a parcel of
land to Demetrio, who accepted it in the same
document. It is there declared that the donation shall
take effect immediately, with the donee having the right
to take possession of the land and receive its fruits but
not to dispose of the land while Ernesto is alive as well
as for ten years following his death. Moreover, Ernesto
also reserved in the same deed his right to sell the
property should he decide to dispose of it at any time -
a right which he did not exercise at all. After his death,
Ernesto's heirs seasonably brought an action to recover
the property, alleging that the donation was void as it
did not comply with the formalities of a will. Will the
suit prosper? (1998, 1990 BAR)
A: YES, the suit will prosper as the donation did not comply
with the formalities of a will. In this instance, the fact that
the donor did not intend to transfer ownership or
possession of the donated property to the donee until the
donor's death, would result in a donation mortis causa and
in this kind of disposition, the formalities of a will should be
complied with, otherwise, the donation is void. In this
Instance, donation mortis causa embodied only in a public
instrument without the formalities of a will could not have
transferred ownership of disputed property to another.
83
Q: On 21 Jan. 1986, A executed a deed of donation inter
vivos of a parcel of land to Dr. B who had earlier
constructed thereon a building in which research on
the dreaded disease AIDS were being conducted. The
deed, acknowledged before a notary public, was
handed over by A to Dr. B who received it. A few days
after, A flew to Davao City. Unfortunately, the airplane
he was riding crashed on landing killing him. Two days
after the unfortunate accident. Dr. B, upon advice of a
lawyer, executed a deed acknowledged before a notary
public accepting the donation. Is the donation effective?
Explain your answer. (1998, 1993 BAR)
A: NO, the donation is not effective. The law requires that
the separate acceptance of the donee of an immovable must
be done in a public document during the lifetime of the
donor. (Arts. 746 & 749, NCC) In this case, B executed the
deed of acceptance before a notary public after the donor
had already died.
Q: On 27 July 1997, Pedro mailed in Manila a letter to
his brother Jose, a resident of Iloilo City, offering to
donate a vintage sports car which the latter had long
been wanting to buy from the former. On 05 Aug. 1997,
Jose called Pedro by cellular phone to thank him for his
generosity and to inform him that he was sending by
mail for his letter of acceptance. Pedro never received
that letter because it was never mailed. On 14 Aug.
1997, Pedro received a telegram from Iloilo informing
him that Jose had been killed in a road accident the day
before (13 Aug. 1997). (1998 BAR)
(a) Is there a perfected donation?
A: NONE. There is no perfected donation. Under Art. 748 of
the NCC, the donation of a movable may be made orally or
in writing. If the value of the personal property donated
exceeds five thousand pesos, the donation and the
acceptance shall be made in writing. Assuming that the
value of the thing donated, a vintage sports car, exceeds
P5,000.00, then the donation and the acceptance must be in
writing. In this instance, the acceptance of Jose was not in
writing, therefore, the donation is void. Upon the other
hand, assuming that the sports car costs less than
P5,000.00, the donation may be oral, but still, the
simultaneous delivery of the car is needed and there being
none, the donation was never perfected.
(b) Will your answer be the same if Jose did mail his
acceptance letter, but it was received by Pedro
in Manila days after Jose’s death?
A: YES, the answer is the same. If Jose’s mail containing his
acceptance of the donation was received by Pedro after the
former’s death, then the donation is still void because under
Art. 734 of the NCC, the donation is perfected the moment
the donor knows of the acceptance by the done. The death
of Jose before Pedro could receive the acceptance indicates
that the donation was never perfected. Under Art. 746 of the
NCC, acceptance must be made during the lifetime of both
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FACULTY OF CIVI L LAW
 CIVIL LAW
the donor and the done.
5. LIMITATIONS
(2011 BAR)
Q: When the donor gives donations without reserving
sufficient funds for his support or for the support of his
dependents, his donations are
(A) Rescissible, since it results in economic lesion
of more than 25% of the value of his properties.
(B) Voidable, since his consent to the donation is
vitiated by mindless kindness.
(C) Void, since it amounts to wanton expenditure
beyond his means.
(D) Reducible to the extent that the donations
impaired the support due to himself and his
dependents (2011 BAR)
A: (D) Reducible to the extent that the donations impaired
the support due to himself and his dependents
6. REDUCTION AND REVOCATION
(2022, 2011, 2006, 2003, 1991, 1990 BAR)
Q: What is the prescriptive period for filing an action for
revocation of a donation based on acts of ingratitude of
the donee? (2011 BAR)
(A) 5 years from the perfection of the donation.
(B) 1 year from the perfection of the donation.
(C) 4 years from the perfection of the donation.
(D) Such action does not prescribe.
A: (B) 1 year from the perfection of the donation.
Q: In 2014, a wealthy young couple, the spouses Tan,
moved by the spirit of generosity and love for their
hometown in Siquijor, decided to donate a one-hectare
lot in favor of the province of Siquijor. The Deed of
Donation pertinently provides:
“The herein DONORS hereby voluntarily and freely give,
transfer and convey, by way of unconditional donation,
unto said DONEE, all of the rights, title and interest which
the aforesaid DONORS have or which pertain to them and
which they owned exclusively in the above-described real
property over a one hectare portion of the same, solely
for hospital site only and for no other purpose, where a
provincial government hospital shall be constructed.”
The donation was recorded in the Registry of Deeds,
and a certificate of title to the property was transferred
to the province of Siquijor. In accordance with the Deed
of Donation, the construction of a hospital building was
started in the following year. However, for reasons
unknown, only the foundation of the hospital building
has, to this day, been completed.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
Do the spouses Tan have valid grounds to revoke the
donation? Explain briefly. (2022 BAR)
A: YES, there is a ground to revoke the donation. As stated
in the facts, the donation to the province is a donation
subject to a condition - the condition being the construction
of a government hospital and the use of the subject property
solely for hospital purposes. When the donor imposed that
condition, it can be inferred that the intention was to have a
completed and fully functioning government hospital.
Certainly, the construction of the foundation is far from
compliance with the condition imposed by the donor.
Upon the non-fulfillment of the condition, the donation may
be revoked, and all the rights already acquired by the donee
shall be deemed lost and extinguished. This is a resolutory
condition because it is demandable at once by the donee but
the non-fulfillment of the condition gives the donor the right
to revoke the donation. (Clemente v. Republic of the
Philippines, G.R. No. 220008, 20 Feb. 2019) Thus, the Spouses
Tan have valid grounds to revoke the donation. (Central Bar
Q&A by Paguirigan, 2023)
Q: In 1950, Dr. Alba donated a parcel of land to Central
University on condition that the latter must establish a
medical college on the land to be named after him. In
the year 2000, the heirs of Dr. Alba filed an action to
annul the donation and for the reconveyance of the
property donated to them for the failure, after 50 years,
of the University to establish on the property a medical
school named after their father. The University
opposed the action on the ground of prescription and
also because it had not used the property for some
purpose other than that stated in the donation. Should
the opposition of the University to the action of Dr.
Alba’s heirs be sustained? Explain. (2006, 2003 BAR)
A: The donation may be revoked. The non-establishment of
the medical college on the donated property was a
resolutory condition imposed on the donation by the donor.
Although the Deed of Donation did not fix the time for the
establishment of the medical college, the failure of the
donee to establish the medical college after fifty (50) years
from the making of the donation should be considered as
occurrence of the resolutory condition, and the donation
may now be revoked. While the general rule is that in case
the period is not fixed in the agreement of the parties, the
period must be fixed first by the court before the obligation
may be demanded, the period of fifty (50) years was more
than enough time for the done to comply with the condition.
Hence, in this case, there is no more need for the court to fix
the period because such procedure with the condition.
(Central Philippine University v. Court of Appeals, G.R. No.
112127, 17 July 1995)
84
 QuAMTO (1987-2022)
Q: Sps. Alfredo and Racquel were active members of a
religious congregation. They donated a parcel of land in
favour of that congregation in a duly notarized Deed of
Donation, subject to the condition that the Minister
shall construct thereon a place of worship within one
(1) year from the acceptance of the donation. In an
affidavit he executed on behalf of the congregation, the
Minister accepted the donation. The Deed of Donation
was not registered with the Registry of Deeds.
However, instead of constructing a place of worship, the
Minister constructed a bungalow on the property he
used as his residence. Disappointed with the Minister,
the Sps. revoked the donation and demanded that he
vacate the premises immediately. But the Minister
refused to leave, claiming that aside from using the
bungalow as his residence, he is also using it as a place
for worship on special occasions.
Under the circumstances, can Alfredo and Racquel evict
the Minister and recover possession of the property? If
you were the couple's counsel, what action you take to
protect the interest of your clients? (2006 BAR)
A: As counsel for the couple, I may file an action for
reconveyance of the property on the ground that the
donation was not perfected. It was not perfected because
although it was made in a public document, the donee failed
to notify the donor of such acceptance in an authentic form
before the donation was revoked under Art. 749 of the NCC.
Such notification was necessary for the donation to become
valid and binding.
Q: Sps. Michael and Linda donated a three-hectare
residential land to the City of Baguio on the condition
that the city government would build thereon a public
park with a boxing arena, the construction of which
shall commence within six (6) months from the date the
parties ratify the donation. The donee accepted the
donation and the title to the property was transferred
in its name. Five (5) years elapsed but the public park
with the boxing arena was never started. Considering
the failure of the donee to comply with the condition of
the donation, the donor-spouses sold the property to
Ferdinand who then sued to recover the land from the
government. Will the suit prosper? (1991 BAR)
Q: B donated to M a parcel of land in 1980. B made the
deed of donation, entitled “Donation Inter Vivos”, in a
public instrument and M accepted the donation in the
land same document. It was provided in the deed that
the land donated shall be immediately delivered to M
and that M shall have the right to enjoy the fruits fully.
The deed also provided that B was reserving the right
to dispose of the land during his (B’s) lifetime, and that
M shall not register the deed of donation until after B’s
death. Upon B’s death, W, B’s widow, and sole heir, filed
an action for the recovery of the donated land,
contending that the donation made by B is a donation
mortis causa and not a donation inter vivos. Will said
action prosper? Explain your answer. (1990 BAR)
A: YES, the action will prosper. The donation is a donation
mortis causa because the reservation is to dispose of all the
property donated and, therefore, the donation is revocable
at will. Accordingly, the donation requires the execution of
a valid will, whether notarial or holographic. (Arts. 755 &
728, NCC)
D. PRESCRIPTION
(2017, 2011, 2009, 2008, 2002, 2000, 1998, 1992
BAR)
Q: An action for reconveyance of a registered piece of
land may be brought against the owner appearing on
the title based on a claim that the latter merely holds
such title in trust for the plaintiff. The action prescribes,
however, within 10 years from the registration of the
deed or the date of the issuance of the certificate of title
of the property as long as the trust had not been
repudiated. What is the exception to this 10-year
prescriptive period? (2011 BAR)
(A) When the plaintiff had no notice of the deed or
the issuance of the certificate of title.
(B) When the title holder concealed the matter
from the plaintiff.
(C) When fortuitous circumstances prevented the
plaintiff from filing the case sooner.
(D) When the plaintiff is in possession of the
property.

A: Ferdinand has no right to recover the land. It is true that

A: (D) When the plaintiff is in possession of the property.
the donation was revocable because of breach of the
conditions. But until and unless the donation was revoked,
it remained valid. Hence, Sps. Michael and Linda had no
right to sell the land to Ferdinand. One cannot give what he
does not have. What the donors should have done first was
to have the donation annulled or revoked. And after that
was done, they could validly have disposed of the land in
favor of Ferdinand.

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1. DISTINCTIONS BETWEEN ACQUISITIVE AND equity is concerned, there being no showing in the facts how
EXTINCTIVE PRESCRIPTION he entered into the ownership and possession of the land.

Q: A owned a parcel of unregistered land located on the

Q: In 1965, Renren bought from Robyn a parcel of
Tarlac side of the boundary between Tarlac and
registered land evidenced by a duly executed deed of
Pangasinan. His brother B owned the adjoining parcel
sale. The owner presented the deed of sale and the
of unregistered land on the Pangasinan side. A sold the
owner's certificate of title to the Register of Deeds. The
Tarlac parcel to X in a deed of sale executed as a public
entry was made in the daybook and corresponding fees
instrument by A and X. After X paid in full the price of
were paid as evidenced by official receipt. However, no
the sale, X took possession of the Pangasinan parcel in
transfer of certificate of title was issued to Renren
the belief that it was the Tarlac parcel covered by the
because the original certificate of title in Robyn's name
deed of sale executed by A and X.
was temporarily misplaced after fire partly gutted the
Office of the Register of Deeds. Meanwhile, the land had
After 12 years, a controversy arose between B and X on
been possessed by Robyn's distant cousin, Mikaelo,
the issue of the ownership of the Pangasinan parcel, B
openly, adversely and continuously in the concept of
claims a vested right of ownership over the Pangasinan
owner since 1960. It was only in April 1998 that Renren
parcel because B never sold that parcel to X or to
sued Mikaelo to recover possession. Mikaelo invoked:
anyone else. On the other hand, X claims a vested right
of ownership over the Pangasinan parcel by acquisitive
Decide the case by evaluating these defenses. (1998
prescription, because X possessed this parcel for over
BAR)
10 years under claim of ownership.

(a) acquisitive prescription

Decide on these claims, giving your reasons. (1992
BAR)
A: Renren's action to recover possession of the land will
prosper. In 1965, after buying the land from Robyn, he
A: At this point in time, X cannot claim the right of vested
submitted the Deed of Sale to the Registry of Deeds for
ownership over the Pangasinan parcel by acquisitive
registration together with the owner's duplicate copy of the
prescription. In addition to the requisites common to
title and paid the corresponding registration fees. Under
ordinary and extraordinary acquisitive prescription
Sec. 56 of PD 1529, the Deed of Sale to Renren is considered
consisting of uninterrupted, peaceful, public, adverse, and
registered from the time the sale was entered in the Day
actual possession in the concept of owner, ordinary
Book (now called the Primary Entry Book). For all legal
acquisitive prescription for 10 years requires (1)
intents and purposes, Renren is considered the registered
possession in good faith and just title. "Just title" means that
owner of the land. After all, it was not his fault that the
the adverse claimant came into possession of the property
Registry of Deeds could not issue the corresponding
through one of the modes recognized by law for the
transfer certificate of title. Mikaelo's defense of prescription
acquisition of ownership, but the grantor was not the owner
cannot be sustained. A Torrens title is imprescriptible. No
or could not transmit any right. (Art.1129) In this case, there
title to registered land in derogation of the title of the
is no “just title” and no “mode” that can be invoked by X for
registered owner shall be acquired by prescription or
the acquisition of the Pangasinan parcel. There was no
adverse possession. (Sec. 47, PD 1529) The right to recover
constructive delivery of the Pangasinan parcel because it
possession of registered land likewise does not prescribe
was not the subject-matter of the deed of sale. Hence, B
because possession is just a necessary incident of
retains ownership of the Pangasinan parcel of land.
ownership.

(b) laches, asking that he be declared owner of the
land.
A: Mikaelo's defense of laches, however, appears to be more
sustainable. Renren bought the land and had the sale
registered way back in 1965. From the facts, it appears that
it was only in 1998 or after an inexplicable delay of 33 years
that he took the first step asserting his right to the land. It
was not even an action to recover ownership but only
possession of the land. By ordinary standards, 33 years of
neglect or inaction is too long and may be considered
unreasonable. As often held by the Supreme Court, the
principle of imprescriptibly sometimes has to yield to the
equitable principle of laches which can convert even a
registered landowner's claim into a stale demand. Mikaelo's
claim of laches, however, is weak insofar as the element of
2. DISTINCTIONS BETWEEN EXTINCTIVE
PRESCRIPTION AND LACHES
(2002, 2000 BAR)
Q: Way back in 1948, Winda’s husband sold in favor of
Verde Sports Center Corp. (Verde) a 10-hectare
property belonging to their conjugal partnership. The
sale was made without Winda’s knowledge, much less
consent. In 1950, Winda learned of the sale, when she
discovered the deed of sale among the documents in
her husband’s vault after his demise. Soon after, she
noticed that the construction of the sports complex had
started. Upon completion of the construction in 1952,
she tried but failed to get free membership privileges in
Verde.

U N I V E R S IT Y O F S A N T O T O M A S 86
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
Winda now files a suit against Verde for the annulment
of the sale on the ground that she did not consent to the
sale. In answer, Verde contends that, in accordance
with the Spanish Civil Code which was then in force, the
sale in 1948 of the property did not need her
concurrence. Verde contends that in any case the action
has prescribed or is barred by laches. Winda rejoins
that her Torrens title covering the property is
indefeasible, and imprescriptible. (2002 BAR)
3. Lack of knowledge on the part of the defendant that
the complainant would assert the right on which he
bases his suit; and
4. Injury or prejudice to the defendant in the event
relief is accorded to the complainant, or the suit is
not held to be barred.

(a) Define or explain the term “laches”.

A: Laches means failure or neglect, for an unreasonable and

unexplained length of time, to do what, by exercising due
diligence, could or should have been done earlier. It is
negligence or omission to assert a right within a reasonable
time. (De Vera v. Court of Appeals, G.R. No. 97761, 14 Apr.
1999)

(b) Decide the case, stating your reasons for your

decision.

A: While Art. 1413 of the Spanish Civil Code did not require
the consent of the wife for the validity of the sale, an
alienation by the husband in fraud of the wife is void as held
in Uy Coque v. Navas (G.R. No. L-20392, 20 Nov. 1923).
Assuming that the alienation in 1948 was in fraud of Winda
and, therefore, makes the sale to Verde void, the action to
set aside the sale, nonetheless, is already barred by
prescription and laches. More than 52 years have already
elapsed from her discovery of the sale in 1950.

Q: In an action brought to collect a sum of money based

on a surety agreement, the defense of laches was raised
as the claim was filed more than seven years from the
maturity of the obligation. However, the action was
brought within the ten-year prescriptive period
provided by law wherein actions based on written
contracts can be instituted. (2000 BAR)

(a) Will the defense prosper? Reason.

A: NO, the defense will not prosper. The problem did not
give facts from which laches may be inferred. Mere delay in
filing an action, standing alone, does not constitute laches.
(Agra v. PNB, G.R. No. 133317, 29 June 1999)

(b) What are the essential elements of laches?

A: The four basic elements of laches are:

1. Conduct on the part of the defendant or of one
under whom they claim, giving rise to the situation
of which complainant seeks a remedy;

2. Delay in asserting the complainant’s rights, the

complainant having had knowledge or notice of the
defendant’s conduct and having been afforded an
opportunity to institute suit;

87 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW

IV. LAND TITLES AND DEEDS B. REGALIAN DOCTRINE

(2008 BAR)

A. TORRENS SYSTEM Q: The properties of Jessica and Jenny, who are

(2009, 2008, 1994 BAR) neighbors, lie along the banks of the Marikina River. At
certain times of the year, the river would swell and as
the water recedes, soil, rocks, and other materials are
deposited on Jessica’s and Jenny’s properties. This
Q: Distinguish the Torrens system of land registration
pattern of the river swelling, receding, and depositing
from the system of recording of evidence of title. (1994
soil and other materials being deposited on the
BAR)
neighbors’ properties have gone on for many years.
Knowing this pattern, Jessica constructed a concrete
A: The Torrens system of land registration is a system for
barrier about 2 meters from her property line and
the registration of title to the land. Thus, under this system
extending towards the river, so that when the water
what is entered in the Registry of Deeds, is a record of the
recedes, soil, and other materials are trapped within
owner's estate or interest in the land, unlike the system
this barrier. After several years, the area between
under the Spanish Mortgage Law or the system under Sec.
Jessica’s property line to the concrete barrier was
194 of the Revised Administrative Code as amended by Act
completely filled with soil, effectively increasing
3344 where only the evidence of such title is recorded. In
Jessica’s property by 2 meters. Jenny’s property, where
the latter system, what is recorded is the deed of
no barrier was constructed, also increased by one
conveyance from hence the owner's title emanated and not
meter along the side of the river.
the title itself.

Assume the two properties are on a cliff adjoining the

Torrens system of land registration is that which is
shore of Laguna Lake. Jessica and Jenny ha hotel built
prescribed in Act 496 (now PD 1529), which is either
on the properties. They had the earth and rocks
Judicial or quasi- judicial. System or recording of evidence
excavated from the properties dumped on the
of title is merely the registration of evidence of acquisitions
adjoining shore, giving rise to a new patch of dry land.
of land with the Register of Deeds, who annotates the same
Can they validly lay claim to the patch of land? (2008
on the existing title, cancels the old one and issues a new
BAR)
title based on the document presented for registration.

A: Jessica and Jenny cannot validly lay claim to the price of

1. GENERAL PRINCIPLES
(2009, 2005 BAR)
Q: In an ejectment case filed by Don against Cesar, can
the latter ask for the cancellation of Don's title
considering that he (Cesar) is the rightful owner of the
lot? Explain. (2005 BAR)
A: NO, Cesar cannot ask for the cancellation of Don's title in
the ejectment case filed by Don against him. Under Sec. 48
of PD 1529, the Property Registration Decree, a Torrents
title shall not be subject to collateral attack. It cannot be
altered, modified or cancelled except in a direct proceeding
in accordance with law. The ejectment proceeding does not
provide the proper forum for the cancellation of Don’s title.
While Cesar’s counterclaim for cancellation of Don’s title
may be considered a direct attack, the same should
nevertheless be denied on procedural grounds because an
MTC or MeTC is without jurisdiction to cancel a Torrens
title.
dry land that resulted from the dumping of rocks and earth
materials excavated from their properties because it is a
reclamation without authority. The land is part of the
lakeshore, if not the lakebed, which is inalienable land of the
public domain.
C. NATIONALITY RESTRICTIONS ON LAND OWNERSHIP
(2017 BAR)
Q: Krystal owns a parcel of land covered by TCT No.
12345 in Angeles City, Due to severe financial
constraints, Krystal was forced to sell the property to
RBP Corporation, a foreign corporation based in South
Korea. Subsequently, RBP Corporation sold the
property to Gloria, one of its most valued clients.
Wanting her property back, Krystal, learning of the
transfer of the property froth RBP Corporation to
Gloria, sued both of them in the RTC for annulment of
sale and for reconveyance. She alleged that the sale by
RBP Corporation to Gloria was void because ADP
Corporation was a foreign corporation prohibited by
the Constitution from acquiring and owning lands in
the Philippines. Will Krystal's suit for annulment of sale
and reconveyance prosper? Explain your answer.

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2023 GOLDEN NOTES
 QuAMTO (1987-2022)
(2017 BAR)
A: NO, Krystal's suit will not prosper. The Supreme Court, in
Borromeo v. Descallar (G.R. No. 159310, 24 Feb. 2009),
reiterated the consistent ruling that if land is invalidly
transferred to an alien who subsequently becomes a
Filipino citizen or transfers it to a Filipino, the flaw in the
original transaction is considered cured and the title of the
transferee is rendered valid. In this case, RBP, being a
foreign corporation is prohibited from acquiring private
land, making the sale of Krystal to RBP void ab However, the
subsequent transfer to a Filipino citizen cured the defect,
making Gloria's title valid and defeating Krystal's action for
annulment and reconveyance.
D. ORIGINAL REGISTRATION
(PD 1529)
(2022, 2019, 2017, 2015, 2014, 2009, 2008, 2005,
2004, 2003, 2001, 2000, 1999, 1995, 1991, 1990 BAR)
1. WHO MAY APPLY
(2014, 2013, 1994, 1992 BAR)
2. DECREE OF REGISTRATION
(2022, 2016 BAR)
Q: This case involves two competing titles: TCT No.
23456 in the name of Flor and TCT No. 65432 in the
name of de Luna. Flor’s title was derived from Rodrigo.
Rodrigo’s title was originally obtained through a
judicial confirmation of title in 1950 based on a survey
plan approved in 1931. On the other hand, de Luna
derived her TCT No. 65432 from Diaz who obtained an
original title 6 of 7 through judicial confirmation of title
at a much later date, in 1970, on the basis of a survey
plan approved in 1921. It turned out that Flor’s TCT No.
23456, although titled prior in time, was based on a
survey plan that was marred with numerous blatant,
obvious and serious defects, to the point that the trial
court found it dubious, irregularly approved and was
therefore fake. (2022 BAR)
a. Discuss the principle of “qui prior est tempore,
potior est jure” in the torrens system of land
registration.
A: The principle of "qui prior est tempore, potior est jure"
literally means he who is before in time is better in right.
(Benavides vs. Salvador, G.R. No. 173331, 11 Dec. 2013).
Under the Torrens System of land registration, it means that
in case of conflict between two certificates of title
purporting to cover the same land, the earlier in date will
prevail. (Yu vs. Ayala Land, Inc., G.R. No. 173120, 10 Apr.
2019) (Central Bar Q&A by Paguirigan, 2023)
89
b. As between Flor and de Luna, whose title should
be declared valid and whose title should be
voided? Explain briefly.
A: It is submitted that de Luna's title should be declared
valid while Flor's title should be declared void. In a similar
case decided by the Supreme Court, it ruled that in case of
conflict between two certificates of title purporting to cover
the same land, the later certificate of title should prevail and
be declared valid if the earlier title was sourced from a void
survey. In the case presented, while Flor's certificate of title
was issued earlier, the facts clearly state that it was sourced
from a void survey since such survey was marred by
numerous and serious defects and which turned out to be
fake. Thus, when the technical description appearing in the
title is clearly erroneous, the courts have no other recourse
but to order its cancellation. Hence, de Luna's title should be
declared valid and must prevail over Flor's title even if it
was issued much later than the latter's title. (Yu v. Ayala
Land, Inc., G.R. No. 173120, 10 Apr. 2019) (Central Bar Q&A
by Paguirigan, 2023)
3. REVIEW OF DECREE OF REGISTRATION;
INNOCENT PURCHASER FOR VALUE
(2022, 2019, 2017, 2009, 2008, 2005, 2004, 2003,
2001, 2000, 1999, 1995, 1991, 1990 BAR)
Q: Being an overseas worker, Salvador issued to
Ronaldo a duly notarized Special Power of Attorney
(SPA) authorizing the latter to enter into a contract of
lease over Salvador's property covered by TCT No.
122433 for a period of three years with SISI Corp.
Salvador entrusted to Ronaldo the owner's duplicate of
the TCT in case SISI Corp. needed to verify the same.
Hearing rumors that the subject property was sold,
Salvador went to the Register of Deeds and was shocked
to find out that TCT No. 122433 had been cancelled and
TCT No. 334388 had been issued in Eduardo’s name. To
vindicate his property rights, Salvador filed a complaint
for cancellation of title and reconveyance. Salvador was
able to prove that he was out of the country when the
purported sale was executed. On the other hand,
Eduardo claims to be an innocent purchase for value,
stating that he paid the fair market value to Ronaldo
and that he relied on the fact that Ronaldo presented
the original owner’s duplicate of Salvador’s TCT. He
likewise inspected the property and determined that
Salvador was indeed the owner
If you were the judge, decide. Explain briefly. (2022
BAR)
A: If I were the Judge, I would rule in favor of Salvador.
While it is true that Eduardo inspected the property prior to
his purchase of the same, he cannot be considered an
innocent purchaser for value. The facts are clear that the
property was still registered in the name of Salvador at the
time Ronaldo sold the same to Eduardo. A prudent man who
buys registered property from a person other than the
registered owner should have inquired as to authority of
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
the seller to convey the property. (Bautista vs. Court of
Appeals, G.R. No. 106042, 28 Feb. 1994)
In addition, while Ronaldo was given a Special Power of
Attorney by Salvador to lease the land, such power does not
include the power to sell the land. In fact, if the sale of a
piece of land is made through an agent, the authority of the
agent must be in writing, otherwise the sale is void. (Art.
1874, NCC) Hence, I will declare that the sale made by
Ronaldo in favor of Eduardo is void. (Central Bar Q&A by
Paguirigan, 2023)
Q: Atoy is one of the five children of Jawo. Jawo was the
registered owner of a 4-hectare parcel of land in Sta.
Cruz, Laguna covered by TCT No. 77347. When Jawo
died, the owner’s duplicate of the TCT was kept by
Jawo’s daughter, Akiko (sister of Atoy), who resided in
the said property. Wanting to have the said 4-hectare
property registered under his name, Atoy got in touch
with Franz who had special connections with the
Register of Deeds of Sta. Cruz, Laguna. TCT No. 77347
was then cancelled and TCT No. 84660 was issued in
Atoy’s name on 29 Jan. 2013. Atoy immediately
mortgaged the property to the Rural Bank of Sta. Cruz
(RBSC). Upon default and after being declared the
winning bidder in the extrajudicial foreclosure sale,
RBSC consolidated ownership with the issuance of TCT
No. 94477 in its name.
How will Akiko and the other heirs of Jawo be able to
successfully argue that RBSC is not an innocent
purchaser for value? Explain briefly. (2022 BAR)
A: Akiko and the other heirs of Jawo may argue that the
bank is not an innocent purchaser for value based on the
following:
While it is true that a forged instrument may be the root of
a valid title in favor of an innocent purchaser for value, the
doctrine does not apply if the owner still holds a valid and
existing title over the land in which case the earlier
certificate of title prevails over the latter one. (Torres vs.
Court of Appeals, G.R. No. L-63046, 21 June 1990)
Moreover, the bank should have exercised a greater degree
of diligence in ascertaining the status of the property. The
bank should have conducted an ocular inspection and they
would have discovered that Akiko was the one in
possession of the property. If the land purchased is in the
possession of a person other than the vendor, the purchaser
must be wary and must investigate the rights of the actual
possessor. (Santiago v. Villamor, G.R. No. 168499, 26 Nov.
2012) Without such inquiry, the purchaser cannot be said to
be in good faith and cannot have any right over the
property. (Central Bar Q&A by Paguirigan, 2023)
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2023 GOLDEN NOTES
Q: In 2015, O, the original registered owner of a 300-
square meter property covered by OCT No. 0-1234,
appointed F as its caretaker. A year after, while O was
abroad, F surreptitiously broke open O's safe and stole
the duplicate copy of the said OCT. F then forged a Deed
of Absolute Sale and made it appear that O sold the
property to him. Consequently, F was able to have OCT
No. 0-1234 cancelled and in lieu thereof, a new title,
TCT No. T-4321, was issued in his name.
A few months after, F offered the property for sale to X.
After conducting the required due diligence to verify
the title of F and finding no occupant in the property
during ocular inspection, X signed the contract of sale,
and thereupon, fully paid the purchase price. A few days
later, X was able to obtain TCT No. T-5678 under his
name.
When O discovered F's fraudulent acts upon his return
in 2017, O immediately filed a complaint for
reconveyance against F and X, principally pointing out
that F merely forged his signature in the Deed of
Absolute Sale purportedly made in F's favor and thus, F
could not have validly transferred the title thereof to X.
Consequently, he sought the return of the subject
property to him.
Will the prayer of O for the return of the subject
property prosper? Explain. (2019 BAR)
A: NO, the case filed by O will not prosper. X acted in good
faith when he purchased the land from F because before
entering into the contract of sale with the latter, X verified
the title property and conducted an ocular inspection
thereof. Since F is the registered owner of the land and was
also the one in possession thereof, X had the right to rely on
what is written on the certificate of title naming F as the
owner. A forged or fraudulent document may become the
root of a valid title if the property has already been
transferred from the name of the owner to that of the forger.
(Fule v. Legare G.R. No. L-17951, 28 Feb. 1963) Thus, a person
who deals with registered property in good faith will
acquire good title from a forger and be absolutely protected
by a Torrens title. (Erasusta vs. Court of Appeals, G.R. No.
149231 17 July 2006) (Central Bar Q&A by Paguirigan, 2023)
Q: Sps. X and Y mortgaged a piece of registered land to
A, delivering as well the OCT to the latter, but they
continued to possess and cultivate the land, giving 1/2
of each harvest to A in partial payment of their loan to
the latter, A, however, without the knowledge of X and
Y, forged a deed of sale of the aforesaid land in favor of
himself, got a TCT in his name, and then sold the land to
B, who bought the land relying on A's title, and who
thereafter also got a TCT in his name. It was only then
that the Sps. X and Y learned that their land had been
titled in B's name. May said spouses file an action for
reconveyance of the land in question against b? Reason.
(2017, 1999 BAR)
90
 QuAMTO (1987-2022)
A: The action of X and Y against B for reconveyance of the
land will not prosper because B has acquired a clean title to
the property being an innocent purchaser for value. A
forged deed is an absolute nullity and conveys no title. The
fact that the forged deed was registered, and a certificate of
title was issued in his name, did not operate to vest upon an
ownership over the property of X and Y. The registration of
the forged deed will not cure the infirmity.
However, once the title to the land is registered in the name
of the forger and title to the land thereafter falls into the
hands of an innocent purchaser for value, the latter acquires
a clean title thereto. A buyer of a registered land is not
required to explore beyond what the record in the registry
indicates on its face inquest for any hidden defector
inchoate right which may subsequently defeat his right
thereto. This is the "mirror principle” of the Torrens system
which makes it possible for a forged deed to be the root of a
good title. Besides, it appears that Sps. X and Y are guilty of
contributory negligence when they delivered this OCT to
the mortgagee without annotating the mortgage thereon.
Between them and the innocent purchaser for value, they
should bear the loss.
Q: Before migrating to Canada in 1992, the Sps. Teodoro
and Anita entrusted all their legal papers and
documents to their nephew, Atty. Tan. Taking
advantage of the situation, Atty. Tan forged a deed of
sale, making it appear that he had bought the couple’s
property in Quezon City. In 2000, he succeeded in
obtaining a TCT over the property in his name.
Subsequently, Atty. Tan sold the same property to Luis,
who built an auto repair shop on the property. In 2004,
Luis registered the deed of conveyance, and title over
the property was transferred in his name. In 2006, the
Sps. Teodoro and Anita came to the Philippines for a
visit and discovered what had happened to their
property. They immediately hire you as lawyer.
What action or actions will you institute to vindicate
their rights? Explain fully. (2009 BAR)
A: In view of the good faith of the buyer Luis, no action can
be taken by the spouses Teodoro and Anita against him
since at the time of the purchase, the title has already been
transferred in the name of Atty. Tan. Luis had the right to
rely on what is written on the certificate of title in the
absence of any circumstance which would incite his
suspicion as to the defect in the title of the transferor.
Thus, as lawyer for the spouses, I will advise Anita and
Teodoro that they can proceed against Atty. Tan and file
civil, criminal, and administrative cases against him for his
fraudulent deed. A civil action for recovery of damages may
be filed to enable the spouses to recover not only the value
of their land but also damages against Atty. Tan. I will also
advise my clients to initiate a criminal action for forgery or
falsification against Atty. Tan and if they may be minded to,
they may also institute a complaint for disbarment against
him before the Supreme Court for the imposition of
91
appropriate disciplinary sanctions for violation of his oath
as a lawyer and the Code of Professional Responsibility.
(Central Bar Q&A by Paguirigan, 2023)
Q: Juliet offered to sell her house and lot, together with
all the furniture and appliances therein to Dehlma.
Before agreeing to purchase the property, Dehlma went
to the Register of Deeds to verify Juliet's title. She
discovered that while the property was registered in
Juliet's name under the Land Registration Act, as
amended by the Property Registration Decree, its
property, Dehlma told Juliet to redeem the property
from Elaine, and gave her an advance payment to be
used for purposes of releasing the mortgage on the
property. When the mortgage was released, Juliet
executed a Deed of Absolute Sale over the property
which was duly registered with the Registry of Deeds,
and a new TCT was issued in Dehlma's name. Dehlma
immediately took possession over the house and lot
and the movables therein. Thereafter, Dehlma went to
the Assessor's Office to get a new tax declaration under
her name. She was surprised to find out that the
property was already declared for tax purposes in the
name of XYZ Bank which had foreclosed the mortgage
on the property before it was sold to her. XYZ Bank was
also the purchaser in the foreclosure sale of the
property. At that time, the property was still
unregistered, but XYZ Bank registered the Sheriff's
Deed of Conveyance in the daybook of the Register of
Deeds under Act. 3344 and obtained a tax declaration
in its name. (2008 BAR)
(a) Was Dehlma a purchaser in good faith?
A: YES, Dehlma is a purchaser in good faith. She learned
about the XYZ tax declaration and foreclosure sale only after
the sale to her was registered. She relied on the certificate
of title of her predecessor-in-interest. Under the Torrens
system, a buyer of registered lands is not required by law to
inquire further than what the Torrens certificate indicates
on its face. If a person proceeds to buy it relying on the title,
that person is considered as buyer in good faith. The
“priority in time” rule could not be invoked by XYZ Bank
because the foreclosure sale of the land in favor of the bank
was recorded under Act No. 3344, the law governing
transaction affecting unregistered land, and thus, does not
bind the land.
(b) Who as between Dehlma and XYZ Bank has
a better right to the house and lot?
A: Between Dehlma and the bank, the former has a better
right to the house and lot.
Q: Rod, the owner of an FX taxi, found in his vehicle an
envelope containing TCT No. 65432 over a lot
registered in Cesar's name. Posing as Cesar, Rod forged
Cesar's signature on a Deed of Sale in Rod's favor. Rod
registered the said document with the Register of
Deeds and obtained a new title in his name. After a year,
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 CIVIL LAW
he sold the lot to Don, a buyer in good faith and for
value, who also registered the lot in his name. (2005,
1991 BAR)
(a) Did Rod acquire title to the land? Explain.
A: NO, Rod did not acquire title to the land. The inscription
in the registry, to be effective, must be made in good faith.
The defense of indefeasibility of a Torrens Title does not
extend to a transferee who takes the certificate of title with
notice of a flaw. A holder in bad faith of a certificate of title
is not entitled to the protection of the law, for the law cannot
be used as a shield for frauds. (Samonte v. Court of Appeals,
G.R. No. 104223, 12 July 2001) In the case at bar, Rod only
forged Cesar's signature on the Deed of Sale. It is very
apparent that there was bad faith on the part of Rod from
the very beginning. As such, he is not entitled to the
protection of the Land Registration Act.
(b) Discuss the rights of Don, if any, over the
property.
A: It is a well-known rule in this jurisdiction that persons
dealing with registered land have the legal right to rely on
the face of the Torrens Certificate of Title and to dispense
with the need to inquire further, except when the party
concerned has actual knowledge of facts and circumstances
that would impel a reasonably cautious man to make such
inquiry. (Naawan Community Rural Bank v. Court of Appeals,
G.R. No. 128573, 13 Jan. 2003) In the given problem, the
property was already registered in the name of Rod when
he bought the same from the latter. Thus, Don could be
considered as a buyer in good faith and for value. However,
since Rod did not actually sell any property to him, Don has
no right to retain ownership over the property. He has only
the right to recover the purchase price plus damages.
Q: Louie, before leaving the country to train as a chef in
a five-star hotel in New York, U.S.A., entrusted to his
first-degree cousin Dewey an application for
registration, under the Land Registration Act, of a
parcel of land located in Bacolod City. A year later, Louie
returned to the Philippines and discovered that Dewey
registered the land and obtained an Original Certificate
of Title over the property in his Dewey’s name.
Compounding the matter, Dewey sold the land to Huey,
an innocent purchaser for value. Louie promptly filed
an action for reconveyance of the parcel of land against
Huey. (2003 BAR)
(a) Is the action pursued by Louie the proper
remedy?
A: An action for reconveyance against Huey is not the
proper remedy, because Huey is an innocent purchaser for
value. The proper recourse is for Louie to go after Dewey for
damages by reason of the fraudulent registration and
subsequent sale of the land. If Dewey is insolvent, Louie may
file a claim against the Assurance Fund. (Heirs of Pedro
Lopez v. De Castro, G.R. No. 112905, 03 Feb. 2000 citing Sps.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
Eduarte v. Court of Appeals, G.R. No. 105944, 09 Feb. 1996)
(b) Assuming that reconveyance is the proper
remedy, will the action prosper if the case
was filed beyond one year, but within ten
years, from the entry of the decree of
registration?
A: YES, the remedy will prosper because the action
prescribes in 10 years, not within one (1) year when a
petition for the reopening of the registration decree may be
filed. The action for reconveyance is distinct from the
petition to reopen the decree of registration. (Alba v. De la
Cruz, G.R. No. 5246, 16 Sept. 1910) There is no need to
reopen the registration proceedings, but the property
should just be reconveyed to the real owner. The action for
reconveyance is based on implied or constructive trust,
which prescribes in 10 years from the date of issuance of
the original certificate of title. This rule assumes that the
defendant is in possession of the land. Where it is the
plaintiff who is in possession of the land, the action for
reconveyance would be in the nature of a suit for quieting
for the title which action is imprescriptible. (David v. Malay,
G.R. No. 132644, 19 Nov. 1999)
Q: JV, owner of a parcel of land, sold it to PP. But the
deed of sale was not registered. One year later, JV sold
the parcel again to RR, who succeeded to register the
deed and to obtain a transfer certificate of title over the
property in his own name.
Who has a better right over the parcel of land, RR or PP?
Why? Explain the legal basis for your answer. (2004,
2001 BAR)
A: It depends on whether or not RR is an innocent purchaser
for value. Under the Torrens System, a deed or instrument
operated only as a contract between the parties and as
evidence of authority to the Register of Deeds to make the
registration. It is the registration of the deed or the
instrument that is the operative act that conveys or affects
the land. (Sec. 51, P.D. No. 1529)
In cases of double sale of titled land, it is a well-settled rule
that the buyer who first registers the sale in good faith
acquires a better right to the land. (Art. 1544)
Persons dealing with property covered by Torrens title are
not required to go beyond what appears on its face.
(Orquiola v. Court of Appels, G.R. No. 141463, 06 Aug. 2002;
Sps. Domingo v. Races, G.R. No. 147468, 09 Apr. 2003) Thus,
absent any showing that RR knew about, or ought to have
known the prior sale of the land to PP or that he acted in bad
faith, and being first to register the sale, RR acquired a good
and a clean title to the property as against PP.
92
 QuAMTO (1987-2022)
Q: Cesar bought a residential condominium unit from
High Rise Co. and paid the price in full. He moved into
the unit, but somehow, he was not given the
Condominium Certificate of Title covering the property.
Unknown to him, High Rise Co. subsequently mortgaged
the entire condominium building to Metrobank as
security for a loan of P500 million. High Rise Co. failed
to pay the loan and the bank foreclosed the mortgage.
At the foreclosure sale, the bank acquired the building,
being the highest bidder. When Cesar learned about
this, he filed an action to annul the foreclosure sale
insofar as his unit was concerned. The bank put up the
defense that it relied on the condominium certificates
of title presented by High Rise Co., which were clean.
Hence, it was a mortgagee and buyer in good faith.
Is this defense tenable or not? Why? (2001 BAR)
A: NO, Metrobank's defense is untenable. As a rule, an
innocent purchaser for value acquires a good and a clean
title to the property. However, it is settled that one who
closes his eyes to facts that should put a reasonable man on
guard is not an innocent purchaser for value. In the present
problem the bank is expected, as a matter of standard
operating procedure, to have conducted an ocular
inspection, of the promises before granting any loan.
Apparently, Metrobank did not follow this procedure.
Otherwise, it should have discovered that the condominium
unit in question was occupied by Cesar and that fact should
have led it to make further inquiry. Under the
circumstances, Metrobank cannot be considered a
mortgagee and buyer in good faith.
Q: In 1979, Nestor applied for and was granted a Free
Patent over a parcel of agricultural land with an area of
30 hectares, located in General Santos City. He
presented the Free Patent to the Register of Deeds, and
he was issued a corresponding OCT No. 375,
Subsequently, Nestor sold the land to Eddie. The deed
of sale was submitted to the Register of Deeds and on
the basis thereof, OCT No. 375 was cancelled, and TCT
No. 4576 was issued in the name of Eddie. In 1986, the
Director of Lands filed a complaint for annulment of
OCT No. 375 and TCT No. 4576 on the ground that
Nestor obtained the Free Patent through fraud. Eddie
filed a motion to dismiss on the ground that he was an
innocent purchaser for value and in good faith and as
such, he has acquired a title to the property, which is
valid, unassailable, and indefeasible. Decide the
motion. (2000 BAR)
A: The motion of Nestor to dismiss the complaint for
annulment of OCT No. 375 and TCT No. 4576 should be
denied for the following reasons:
1. Eddie cannot claim protection as an innocent purchaser
for value nor can he interpose the defense of
indefeasibility of his title, because his TCT is rooted on
a void title. Under Sec. 91 of CA No. 141, as amended,
otherwise known as the Public Land Act, statements of
93
material facts in the applications for public land must
be under oath. Sec. 91 of the same act provides that
such statements shall be considered as essential
conditions and parts of the concession, title, or permit
issued any false statement therein, or omission of facts
shall ipso facto produce the cancellation of the
concession. The patent issued to Nestor in this case is
void ab initio not only because it was obtained by fraud
but also because it covers 30 hectares which is far
beyond the maximum of 24 hectares provided by the
free patent law.
2. The government can seek annulment of the original and
transfer certificates of title and the reversion of the land
to the state. Eddie's defense is untenable. The
protection afforded by the Torrens System to an
innocent purchaser for value can be availed of only if
the land has been titled through judicial proceedings
where the issue of fraud becomes academic after the
lapse of 1 year from the issuance of the decree of
registration. In public land grants, the action of the
government to annul a title fraudulently obtained does
not prescribe such action and will not be barred by the
transfer of the title to an innocent purchaser for value.
Q: Rommel was issued a certificate of title over a parcel
of land in Quezon City. One year later Rachelle, the
legitimate owner of the land, discovered the fraudulent
registration obtained by Rommel. She filed a complaint
against Rommel for reconveyance and caused the
annotation of a notice of lis pendens on the certificate of
title issued to Rommel. Rommel now invokes the
indefeasibility of his title considering that one year has
already elapsed from its issuance. He also seeks the
cancellation of the notice of lis pendens.
Will Rachelle's suit for reconveyance prosper? Explain.
(1995 BAR)
A: YES, Rachelle's suit will prosper because all elements for
an action for reconveyance are present, namely:
a. Rachelle is claiming dominical rights over the same
land.
b. Rommel procured his title to the land by fraud.
c. The action was brought within the statutory period
of four (4) years from discovery of the fraud and
not later than ten (10) years from the date of
registration of Rommel's title.
d. Title to the land has not passed into the hands of an
innocent purchaser for value.
Rommel could invoke the indefeasibility of his title if
Rachelle had filed a petition to reopen or review the decree
of registration. But Rachelle instead filed an ordinary action
in personam for reconveyance. In the latter action,
indefeasibility is not a valid defense because, in filing such
action, Rachelle is not seeking to nullify nor to impugn the
indefeasibility of Rommel's title. She is only asking the court
to compel Rommel to reconvey the title to her as the
legitimate owner of the land.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: In 1950's, the Government acquired a big landed
estate in Central Luzon from the registered owner for
subdivision into small farms and redistribution of bona
fide occupants, F was a former lessee of a parcel of land,
5 hectares in area. After completion of the resurvey and
subdivision, F applied to buy the said land in
accordance with the guidelines of the implementing
agency. Upon full payment of the price in 1957, the
corresponding deed of absolute sale was executed in
his favor and was registered, and in 1961, a new title
was issued in his name. In 1963, F sold the said land to
X; and in 1965 X sold it to Y, new titles were successively
issued in the names of the said purchasers. In 1977, C
filed an action to annul the deeds of sale to F, X and Y
and their titles, on the ground that he had been in actual
physical possession of the land, and that the sale to F
and the subsequent sales should be set aside on the
ground of fraud. Upon motion of defendants, the trial
court dismissed the complaint, upholding their
defenses of their being innocent purchasers for value,
prescription, and laches. Plaintiff appealed. (1990 BAR)
(b) Suppose the government agency concerned
joined C in filing the said action against the
defendants, would that change the result of the
litigation? Explain.
A: Even if the government joins C, this will not alter the
outcome of the case so much because of estoppel as an
express provision in Sec. 45 of Act 496 and Sec. 31 of PD
1529 that a decree of registration and the certificate of title
issued in pursuance thereof “shall be conclusive upon and
against all persons, including the national government and
all branches thereof, whether mentioned by name in the
application or not.”
E. AN ACT IMPROVING THE CONFIRMATION PROCESS
FOR IMPERFECT LAND TITLES
R.A. No. 11573, amending CA 141 and PD 1529
(2017 BAR)

Republic v. Pasig Rizal Co., Inc.

(a) Is the said appeal meritorious? Explain your
G.R. No. 213207, 15 Feb. 2022
answer.
(2017 BAR)

A: NO, the appeal is not meritorious. The trial court ruled

Q: In 1960, Rigor and Mike occupied two separate but
correctly in granting defendant's motion to dismiss for the
adjacent tracts of land-in Mindoro. Rigor's tract was
following reasons:
classified as timber land while Mike's was classified as
agricultural land. Each of them fenced and cultivated
1. While there is the possibility that F, a former lessee of
his own tract continuously for 30 years. In 1991, the
the land knew C was the bona fide occupant thereof
Government declared the land occupied by Mike as
and for this reason his TCT may be vulnerable, the
alienable and disposable, and the one cultivated by
transfer of the same land and the issuance of new
Rigor as no longer intended for public use or public
TCTs to X and Y who are innocent purchasers for
service. Rigor and Mike now come to you today for legal
value render the latter's titles indefeasible. A person
advice in asserting their right of ownership of their
dealing with registered land may safely rely on the
respective lands based on their long possession and
correctness of the certificate of title and the law will
occupation since 1960. (2017 BAR)
not in any way oblige him to go behind the certificate
to determine the condition of the property in search
(a) What are the legal consequences of the 1991
for any hidden defect or inchoate right which may
declarations of the Government respecting the lands?
later invalidate or diminish the right to the land. This
Explain your answer.
is the mirror principle of the Torrens System of land
registration.
A: As to the land occupied by Mike, the same remains a
property of the public dominion. According to
2. The action to annul the sale was instituted in 1977 or
jurisprudence, the classification of the property as alienable
more than 10 years from the date of execution thereof
and disposable land of the public domain does not change
in 1957, hence, it has long prescribed.
its status as property of the public dominion. There must be
an express declaration by the State that the public dominion
3. Under Sec. 45 of Act 496, “the entry of a certificate of
property is no longer intended for public service or the
title shall be regarded as an agreement running with
development of the national wealth or that the property,
the land, and binding upon the applicant and all his
has been converted into patrimonial. Without such express
successors in title that the land shall be and always
declaration, the property, even if classified as alienable or
remain registered land. A title under Act 496 is
disposable, remains property of the public dominion (Heirs
indefeasible and to preserve that character, the title is
of Mario Malabanan v. Republic, G.R. No. 179987, April 29,
cleansed anew with every transfer for value. (De Jesus
2009 and September 3,2013).
v. City of Manila, G.R. No. 9337, 24 Dec. 1914; Laperal v.
City of Manila, G.R. No. L-42792, 23 Oct. 1935; Penullar
v. PNB, G.R. No. L-32762, 27. Jan. 1983)

U N I V E R S IT Y O F S A N T O T O M A S 94
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
As to the land occupied by Rigor, the declaration that it is no
longer intended for public use or public service converted
the same into patrimonial property provided that such
express declaration was in the form of a law duly enacted
by Congress or in a Presidential Proclamation in cases
where the President was duly authorized by law. According
to jurisprudence, when public land is no longer intended for
public use, public service or for the development of the
national wealth it is thereby effectively removed from the
ambit of public dominion and converted into patrimonial
provided that the declaration of such conversion must be
made in the form of a law duly enacted by Congress or by a
Presidential proclamation in cases where the President is
duly authorized by law to that effect (Heirs of Mario
Malabanan v. Republic, G.R. No. 179987, April 29, 2009 and
03 Sept. 2013).
N.B.: In the case of Republic v. Pasig Rizal (G.R. No. 213207,
15 Feb. 2022), the Supreme Court clarified the requirements
for original registration under then Sec. 14 of PD 1529: (i) a
declaration that the land subject of the application is
alienable and disposable; (ii) an express government
manifestation that said land constitutes patrimonial
property, or is "no longer retained" by the State for public
use, public service, or the development of national wealth;
and (iii) proof of possession for the period and in the
manner prescribed by the Civil Code for acquisitive
prescription, reckoned from the moment the property
subject of the application becomes patrimonial property of
the State. Accordingly, the second Malabanan requirement,
was not meant to be adopted in absolute terms. All lands not
otherwise appearing to be clearly within private ownership
are generally presumed to be part of the public domain
pursuant to the Regalian doctrine. Consequently, those who
seek registration on the basis of title over land forming part
of the public domain must overcome the presumption of
State ownership. To do so, the applicant must establish that
the land subject of the application is alienable or disposable
and thus susceptible of acquisition and subsequent
registration. However, once the presumption of State
ownership is discharged by the applicant, the burden to
refute the applicant's claim that the land in question is
patrimonial in nature necessarily falls on the State. For
while the burden to prove that the land subject of the
application is alienable and disposable is placed on the
applicant, the burden to prove that such land is retained for
public service or for the development of the national wealth,
notwithstanding its previous classification as alienable and
disposable, rests, as it should, with the State.
Therefore, as to the land occupied by Mike, the declaration
of the Government that the same is alienable and disposable
“immediately places it within the commerce of man, and
renders it susceptible to private acquisition through
adverse possession.”
95
As to the land occupied by Rigor, it can be said that the
declaration that it is no longer intended for public use or
public service is superfluous to consider the land as
patrimonial. The need for an express government
manifestation confirming that the property in question is
"no longer retained" by the State for public use, public
service, or the development of national wealth, stems from
the principle that abandonment of property of public
dominion under Article 420 cannot be inferred solely from
non-use. In turn, the determination of whether property has
in fact been abandoned by the State is necessary only in
cases where there has been prior state-use. (Republic v.
Pasig Rizal Co., Inc., G.R. No. 213207, 15 Feb. 2022)
(b) Given that, according to Sec. 48(b) of CA 141, in
relation to Sec. 14(1) of PD No. 1529, the open,
continuous, exclusive, and notorious possession and
occupation of alienable and disposable lands of the
public domain as basis for judicial confirmation of
imperfect title must be from June 12, 1945, or earlier,
may Mike nevertheless validly base his assertion of the
right of ownership on prescription under the Civil
Code? Explain your answer.
A: NO because the land remains property of public
dominion and, therefore, not susceptible to acquisition by
prescription. According to jurisprudence, the classification
of the subject property as alienable and disposable land of
the public domain does not change its status as property of
the public dominion. In order to convert the property into
patrimonial, there must be an express declaration by the
State that the public dominion property is no longer
intended for public service or the development of the
national wealth or that the property has been converted
into patrimonial. Without such express declaration, the
property, even if classified as alienable or disposable,
remains property of the public dominion, and thus
incapable of acquisition by prescription (Heirs of Mario
Malabanan v. Republic, G.R. No. 179987, April 29, 2009 and
September 3,2013).
Here, the declaration of the property into alienable and
disposable land of the public domain in 1991 did not
convert the property into patrimonial in the absence of an
express declaration of such conversion into patrimonial in
the form of a law duly enacted by Congress or by a
Presidential proclamation in cases where the President is
duly authorized by law to that effect.
N.B.: Yes, pursuant to the Court’s ruling in Republic v. Pasig
Rizal (G.R. No. 213207, 15 Feb. 2022), Mike can base his
assertion on of the right of ownership under R.A. No. 11573,
which requires only “open, continuous, exclusive, and
notorious possession and occupation of alienable and
disposable agricultural lands of the public domain, under
a bona fide claim of ownership, for at least 20 years
immediately preceding the filing of the application for
confirmation of title except when prevented by war or force
majeure.” (Emphasis supplied) The shortened 20-year
period under the new Sec. 14(1) grants possessors the right
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
to seek registration without having to comply with the
longer period of 30 years possession required for F. CERTIFICATE OF TITLE
acquisitive prescription under the Civil Code. It is but logical (2000 BAR)
for those who have been in adverse possession of alienable
and disposable land for at least 20 years to resort to the
immediate filing of an application for registration on the
Q: Regina has been leasing foreshore land from the
basis of the new Sec. 14 (1) without waiting for prescription
Bureau of Fisheries and Aquatic Resources for the past
to set in years later.
15 years. Recently, she learned that Jorge was able to
obtain a free patent from the Bureau of Agriculture,
(c) Does Rigor have legal basis for his application for
covering the same land, based on a certification by the
judicial confirmation of imperfect title based on
District Forester that the same is already "alienable and
prescription as defined by the Civil Code given that, like
disposable". Moreover, Jorge had already registered
Mike, his open, continuous, exclusive, and notorious
the patent with the Register of Deeds of the province,
possession and occupation was not since 12 June 1945,
and he was issued an OCT for the same. Regina filed an
or earlier, and his tract of land was timber land until the
action for annulment of Jorge's title on the ground that
declaration in 1991. Explain your answer.
it was obtained fraudulently. Will the action prosper?
(2000 BAR)
A: NONE, because Rigor's possession was short of the
period required by the Civil Code for purposes of acquisitive
A: An action for the annulment of Jorge's OCT will prosper
prescription which requires 10 years of continuous
on the following grounds:
possession, if possession was in good faith and with a just
title, or thirty years, in any event. While property may be
1. Under C.A., No. 141, otherwise known as the Public
considered converted into patrimonial because of the 1991
Land Act (PLA), foreshore lands are disposable for
declaration that it is no longer intended for public use or
residential, commercial, industrial, or similar
public service (provided that the declaration be in the form
productive purposes, and only by lease when not
of a law duly enacted by Congress or by a Presidential
needed by the government for public service.
proclamation in cases where the President is duly
authorized by law to that effect), Rigor failed to complete
2. If the land is suited or used for fishpond or aquaculture
the 30-year period required by law in case of extraordinary
purposes, it comes under the Jurisdiction of the
prescription. Since the property was converted into
Bureau of Fisheries and Aquatic Resources (BFAR)
patrimonial only in 1991, the period of prescription
and can only be acquired by lease. (P.D. 705)
commenced to run beginning that year only. Rigor's
possession prior to the conversion of the property into
3. Free Patent is a mode of concession under Sec. 41,
patrimonial cannot be counted for the purpose of
Chapter VII of CA 141, which is applicable only for
completing the prescriptive period because prescription
agricultural lands.
did not operate against the State at that time, the property
then being public dominion property. (Heirs of Mario
4. The certificate of the district forester that the land is
Malabanan v. Republic, G.R. No.179987 April 29, 2009 and 03
already “alienable and disposable” simply means that
Sept. 2013). Rigor may not likewise acquire ownership by
the land is no longer needed for forest purposes, but
virtue of the shorter 10-year ordinary prescription because
the Bureau of Lands could no longer dispose of it by
his possession was not in good faith and without just title.
free patent because it is already covered by a lease
contract between BFAR and Regina. That contract
N.B.: R.A. No. 11573 requires “open, continuous, exclusive,
must be respected.
and notorious possession and occupation of alienable and
disposable agricultural lands of the public domain, under
5. The free patent of Jorge is highly irregular and void ab
a bona fide claim of ownership, for at least 20 years
initio, not only because the Bureau has no statutory
immediately preceding the filing of the application for
authority to issue a free patent over a foreshore area,
confirmation of title except when prevented by war or force
but also because of the false statements made in his
majeure.”
sworn application that he has occupied and cultivated
the land since 04 July 1945, as required by the free
Therefore, provided that Rigor has completed the required
patent law. Under Sec. 91 of the CA 141, any patent
20-year period required by R.A. No. 11573, then he is
concession or title obtained thru false representation
entitled to judicial confirmation of imperfect title under the
is void ab initio. In cases of this nature, it is the
amendatory law.
government that shall institute annulment
proceedings considering that the suit carries with it a
prayer for the reversion of the land to the estate.
However, Regina is a party in interest and the case will
prosper because she has a lease contract for the same
land with the government.

U N I V E R S IT Y O F S A N T O T O M A S 96
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
G. SUBSEQUENT REGISTRATION
(2022, 2016, 2015, 2002, 2001, 1998, 1995, 1992 BAR)
Q: What are the essential requisites or elements for the
allowance of the reopening or review of a decree of
registration? (1992 BAR)
A: The essential elements are: (1) that the petitioner has a
real or dominical right; (2) that he has been deprived
thereof through fraud; (3) that the petition is filed within
one (1) year from the issuance of the decree; and (4) that
the property has not yet been transferred to an innocent
purchaser. (Rublico v. Orellana, G.R. No. L-26582, 28 Nov.
1969; Libudan v. Palma Gil, G.R. No. L-21163, 17 May 1972)
ALTERNATIVE ANSWER:
Petition for review of the Decree of Registration. A remedy
expressly provided in Sec. 32 of PD 1529 (formerly Sec. 38,
Act 496), that has the following elements:
a. The petition must be filed by a person claiming
dominical or other real rights to the land registered
in the name of respondent.
b. The registration of the land in the name of
respondent was procured by means of actual, (not
just constructive) fraud, which must be extrinsic.
Fraud is actual if the registration was made
through deceit or any other intentional act of
downright dishonesty to enrich oneself at the
expense of another. It is extrinsic when it is
something that was not raised, litigated, and
passed upon in the main proceedings.
c. The petition must be filed within one (1) year from
the date of the issuance of the decree.
d. Title to the land has not passed to an innocent
purchaser for value. (Libudan vs. Gil, G.R. No. L-
21163, 17 May 1972; Rublico vs. Orrelana, G.R. No. L-
26582, 28 Nov. 1969; Republic v. Court of Appeals,
G.R. No. 40402, 16 Mar. 1987)
Q: Mr. and Mrs. Roman and Mr. and Mrs. Cruz filed an
application for registration of a parcel of land which
after due proceedings was granted by the RTC acting
registration as land court. However, before the decree
of registration could be issued, the Sps. Roman and the
Sps. Cruz sold the lot to Juan. In the notarized deed of
sale, the sellers expressly undertook to submit the deed
of sale to the land registration court so that the title to
the property would be directly issued in Juan's name.
(2015 BAR)
(a) Is such a stipulation valid?
97
A: YES, because when one who is not the owner of the
property sells or alienates it and later the seller or grantor
acquires title, such title passes by operation of law to the
buyer or grantee. (Art. 1434, NCC)
(b) Distinguish a direct attack from a collateral
attack on a title.
A: A direct attack on a title is one where the action filed is
precisely for the purpose of pointing out the defects in the
title with a prayer that it be declared void. A collateral attack
is one where the action is not instituted for the purpose of
attacking the title, but the nullity of the title is raised as a
defense in a different action.
(c) If the title is issued in the names of the original
sellers, would a motion filed by Juan in the same
case to correct or amend the title to reflect his
name as owner considered be collateral attack?
A: NO, because Juan is not attacking the title but merely
invoking his right as transferee. Hence, it does not involve a
collateral attack on the title.
1. VOLUNTARY DEALINGS
(2022 BAR)
Q: Ely borrows Php 2,000,000.00 from Mia and
mortgages a parcel of land to secure the loan. The
mortgage provides for a 5% monthly interest, a 5-year
maturity period, a default provision in case of non-
payment of interest or principal, and an extrajudicial
foreclosure provision. On the fourth year, Ely fails to
pay interest for three consecutive months. After
sending a demand letter, Mia declares Ely in default and
extrajudicially forecloses the mortgage. Mia is the
highest bidder in the foreclosure sale and consolidates
ownership upon the lapse of the redemption period.
Can Ely have the foreclosure annulled and recover the
property? Explain briefly. (2022 BAR)
A: YES, Ely can have the foreclosure sale annulled and
recover the property. Here, Ely was not given an
opportunity to settle his debt, at the correct amount and
without the iniquitous interest imposed. A judgment
ordering a foreclosure sale is conditioned upon a finding on
the correct amount of the unpaid obligation and the failure
of the debtor to pay the said amount. (Heirs of Espiritu v.
Landrito, G.R. No. 169617, 03 Apr. 2007) A foreclosure of a
real estate mortgage which serves a security for a loan is
void where the mortgage amount included an exorbitant
interest rate. (Land Bank v. David, 22 Aug. 2008) The interest
rate of 5% per month or 60% per annum is clearly
exorbitant and unconscionable as it is ten times the legal
rate of interest for loans or forbearance of money. Thus, the
foreclosure of the mortgage is void. Hence, Ely can have the
foreclosure sale annulled and recover the property. (Central
Bar Q&A by Paguirigan, 2023)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
2. INVOLUNTARY DEALINGS A: Macario is preferred since the registration of his adverse
(2018, 2016, 2002, 2001, 1998, 1995 BAR) claim was made ahead of the notice of levy and writ of
execution in favor of Alex. Macario’s adverse claim, coupled
with the fact that he was in possession of the disputed
a) ADVERSE CLAIM
property, are circumstances which should have put Alex on
(2018, 2016 BAR)
constructive notice that the property being offered to him
had already been sold to another. (Ching v. Enrile, G.R. No.
Q: Socorro is the registered owner of Lot A while
156076, 17 Sept. 2008) The contention that the adverse
Segunda is the registered owner of the adjoining Lot B.
claim is effective only for 30 years is puerile. In Sajonas v.
Lot A is located at an elevated plateau of about 15 feet
Court of Appeals (G.R. No. 102377 05 July 1996), the Court
above the level of Lot B. Since Socorro was allegedly
held that the adverse claim does not ipso facto lose its
removing portions of the land and cement that
validity since an independent action is still necessary to
supported the adjoining property, Segunda caused the
render it ineffective. Until then, the adverse claim shall
annotation of an adverse claim against 50 sq. m. on Lot
continue as a prior lien on the property.
A's TCT, asserting the existence of a legal easement.

b) NOTICE OF LIS PENDENS

If a legal easement does in fact exist, is an annotation of
(2002, 2001, 1998, 1995 BAR)
an adverse claim on the title of the servient estate
proper? (2018 BAR)
Q: Sancho and Pacifico are co-owners of a parcel of land.
Sancho sold the property to Bart. Pacifico sued Sancho
A: NO, the annotation of an adverse claim on the title of the
and Bart for annulment of the sale and reconveyance of
servient estate is not proper and would be unnecessary. An
the property based on the fact that the sale included his
adverse claim over registered land necessitates that the
one-half pro indiviso share. Pacifico had a notice of lis
registrant must have a claim on the title of the disputed land
pendens annotated on the title covering the property
adverse to that of the registered owner arising subsequent
and ordered the cancellation of the notice of lis
to the date of the original registration. (Sec. 70, PD 1529)
pendens. The notice of lis pendens could not be
Annotation is done only to apprise third persons that there
cancelled immediately because the title over the
is a controversy over the ownership of the land and to
property was with a bank to which the property had
preserve and protect the right of the adverse claimant
been mortgaged by Bart. Pacifico appealed the case.
during the pendency of the controversy. (Castro vs. Monsod
While the appeal was pending and with the notice of lis
G.R. No. 183719, 02 Feb. 2011)
pendens still uncancelled, Bart sold the property to
Carlos, who immediately caused the cancellation of the
In the case presented, Segunda does not have a claim on the
notice of lis pendens, as well as the issuance of a new
title of Socorro but is merely asserting the existence of the
title in his name. Is Carlos (a) a purchaser in good faith,
easement, hence, the annotation was improper. In addition,
or (b) a transferee pendente lite? (2002, 1995 BAR)
since what is involved here is a legal easement of lateral and
subjacent support, it exists even without the annotation on
If your answer is (a), how can the right of Pacifico as co-
the title of the servient estate. (Central Bar Q&A by
owner be protected? Explain.
Paguirigan, 2023)

A: Carlos is a buyer in bad faith. The notice of lis pendens

Q: Macario bought a titled lot from Ramon, got the title,
was still annotated at the back of the title at the time he
and took possession of the lot. Since Macario did not
bought the land from Bart. The uncancelled notice of lis
have the money to pay the taxes, fees, and registration
pendens operates as constructive notice of its contents as
expenses, he was not able to register the Deed of
well as interests, legal or equitable, included therein. All
Absolute Sale. Upon advice, he merely executed an
persons are charged with the knowledge of what it contains.
Affidavit of Adverse Claim and had it annotated at the
In an earlier case, it was held that a notice of an adverse
back of the title. A few years after, he received a Notice
claim remains effective and binding notwithstanding the
of Levy on Attachment and Writ of Execution in favor of
lapse of the 30 days from its inscription in the registry. This
Alex. The notice, writ and certificate of sale were
ruling is even more applicable in a lis pendens. Carlos is a
annotated at the back of the title still in Ramon's name.
transferee pendente lite insofar as Sancho’s share in the co-
Alex contends that since the Affidavit of Adverse Claim
ownership in the land is concerned because the land was
is effective only for 30 days from the date of its
transferred to him during the pendency of the appeal.
registration, then its validity has expired. Macario
posits that the annotation of his adverse claim is notice
Pacifico can protect his right as a co-owner by pursuing his
to the whole world of his purchase of the lot in question.
appeal; asking the Court of Appeals to order the re-
Who has the superior right over the disputed property,
annotation of the lis pendens on the title of Carlos; and by
Macario or Alex? Explain. (2016 BAR)
invoking his right of redemption of Bart’s share under Art.
1620, NCC.

U N I V E R S IT Y O F S A N T O T O M A S 98
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
Q: Mario sold his house and lot to Carmen for P1 million title issued to Rommel. Rommel now invokes the
payable in five (5) equal annual installments. The sale indefeasibility of his title considering that one year has
was registered, and title was issued in Carmen's name. already elapsed from its issuance. He also seeks the
Carmen failed to pay the last three installments and cancellation of the notice of lis pendens.
Mario filed an action for collection, damages, and
attorney’s fees against her. Upon filing of the complaint, May the court cancel the notice of lis pendens even
he caused a notice of lis pendens to be annotated on before final judgment is rendered? Explain. (1995 BAR)
Carmen's title. Is the notice of lis pendens proper or not?
Why? (2001 BAR) A: A Notice of Lis Pendens may be cancelled even before final
Judgment upon proper showing that the notice is for the
A: The notice of lis pendens is not proper for the reason that purpose of molesting or harassing the adverse party or that
the case filed by Mario against Carmen is only for collection, the notice of lis pendens is not necessary to protect the right
damages, and attorney's fees. Annotation of a lis pendens of the party who caused it to be registered. (Sec. 77, PD
can only be done in cases involving recovery of possession 1529) In this case, it is given that Rachelle is the legitimate
of real property, or to quiet title or to remove cloud thereon, owner of the land in question. It can be said, therefore, that
or for partition or any other proceeding affecting title to the when she filed her notice of lis pendens her purpose was to
land or the use or occupation thereof. The action filed by protect her interest in the land and not just to molest
Mario does not fall on anyone of these. Rommel. It is necessary to record the lis pendens to protect
her interest because if she did not do it, there is a possibility
Q: Sec. 70 of PD 1529, concerning adverse claims on that the land will fall into the hands of an innocent
registered land, provides a 30-day period of effectivity purchaser for value and in that event, the court loses control
of an adverse claim, counted from the date of its over the land making any favorable judgment thereon moot
registration. Suppose a notice of adverse claim based and academic. For these reasons, the notice of lis pendens
upon a contract to sell was registered on 01 Mar. 1997 may not be cancelled.
at the instance of the BUYER, but on 01 June 1997, or
after the lapse of the 30-day period, a notice of levy on
execution in favor of a JUDGMENT CREDITOR was also H. NON-REGISTRABLE PROPERTIES
registered to enforce a final judgment for money (2007 BAR)
against the registered owner. Then, on 15 June 1997
there having been no formal cancellation of his notice
of adverse claim, the BUYER pays to the seller-owner
Q: Bedrock Land & Property Development Corp. is a
the agreed purchase price in full and registers the
development company engaged in developing and
corresponding deed of sale. Because the annotation of
selling subdivisions, condominium units and industrial
the notice of levy is carried over to the new title in his
estates. In order to replenish its inventories, it
name, the BUYER brings an action against the
embarked on an aggressive land banking program. It
JUDGMENT CREDITOR to cancel such annotation, but
employed "scouts" who roam all over the Philippines to
the latter claims that his lien is superior because it was
look for and conduct investigations on prospective sites
annotated after the adverse claim of the BUYER had ipso
for acquisition and development, whether developed,
facto ceased to be effective. Will the suit prosper? (1998
semi-developed or raw land. The management of
BAR)
Bedrock asks you as the company counsel to prepare a
manual containing a summary of the pertinent laws and
A: YES, the suit will prosper. While an adverse claim duly
regulations relating to land registration and
annotated at the back of a title under Sec. 70 of PD 1529 is
acquisition of title to land. The manual should include
good only for 30 days, cancellation thereof is still necessary
the following items: (2007 BAR)
to render it ineffective, otherwise, the inscription thereof
will remain annotated as a lien on the property. While the
(a) What is the governing law?
life of adverse claim is 30 days under PD 1529, it continuous
to be effective until it is cancelled by formal petition filed
A: The governing law is the Land Registration Act as
with the Register of Deeds. The cancellation of the notice of
amended by Property Registration Decree. (Act 496, as
levy is justified under Sec. 108 of PD 1529 considering that
amended by PD 1529)
the levy on execution cannot be enforced against the buyer
whose adverse claim against the registered owner was
(b) What properties are not registrable?
recorded ahead of the notice of levy on execution.

A: The following properties are not registrable:

Q: Rommel was issued a certificate of title over a parcel
a. Properties of the Public Dominion;
of land in Quezon City. One year later Rachelle, the
b. Properties for public use or public service;
legitimate owner of the land, discovered the fraudulent
c. Inalienable lands of the public domain;
registration obtained by Rommel. She filed a complaint
d. Military installations, civil and quasi-public lands;
against Rommel for reconveyance and caused the
and
annotation of a notice of lis pendens on the certificate of
e. All lands not classified as alienable and disposable.

99 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
I. DEALINGS WITH UNREGISTERED LAND
(2009, 2000 BAR)
Q: Marciano is the owner of a parcel of land through
which a river runs out into the sea. The land had been
brought under the Torrens System and is cultivated by
Ulpiano and his family as farmworkers therein. Over
the years, the river brought silt and sediment from its
source up in the mountains and forests so that
gradually the land owned by Marciano increased in
area by three hectares. Ulpiano built three huts on this
additional area, where he and his two married children
live. On this same area. Ulpiano and his family planted
peanuts, mongo, beans, and vegetables. Ulpiano also
regular paid taxes on the land, as shown by tax
declarations, for over thirty years. When Marciano
learned of the increase in the size of the land, he
ordered Ulpiano to demolish the huts, and demanded
that he be paid his share in the proceeds of the harvest.
Marciano claims that under the NCC, the alluvium
belongs to him as a registered riparian owner to whose
land the accretion attaches, and that his right is
enforceable against the whole world. Is Marciano
correct? Explain. (2009 BAR)
A: Marciano's contention is correct. Since the accretion was
deposited on his land by the action of the waters of the river
and he did not construct any structure to increase the
deposition of soil ad silt, Marciano automatically owns the
accretion. His real right of ownership is enforceable against
the whole word including Ulpiano and his two married
children. Although Marciano's land is registered the three-
hectare land deposited through accretion was not
automatically registered.
As unregistered land, it is subject to acquisitive prescription
by third persons. Although Ulpiano and his children live in
the three-hectare unregistered land owned by Marciano,
they are farmworkers; therefore, they are possessors not in
the concept of owners but in the concept of more holders.
Even if they possessed the land for more than 30 years, they
cannot become the owners thereof through extraordinary
acquisitive prescription, because the law requires
possession in the concept of owner.
Payment of taxes and tax declaration are not enough to
make their possession one in the concept of owner. They
must repudiate the possession in the concept of holder by
executing unequivocal acts of repudiation amounting to
ouster of Marciano, known to Marciano and must be proven
by clear and convincing evidence. Only then would his
possession become adverse. (2009-2017 UST FCL Bar Q&A)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
Q: R.A. No. 1899 authorizes municipalities and
chartered cities to reclaim foreshore lands bordering
them and to construct thereon adequate docking and
harbor facilities. Pursuant thereto, the City of Cavite
entered into an agreement with the Fil-Estate Realty
Company, authorizing the latter to reclaim 300
hectares of land from the sea bordering the city, with
30% of the land to be reclaimed to be owned by Fil-
Estate as compensation for its services. The Solicitor
General questioned the validity of the agreement on the
ground that it will mean reclaiming land under the sea
which is beyond the commerce of man. The City replies
that this is authorized by R.A. No. 1899 because it
authorizes the construction of docks and harbors. Who
is correct? (2000 BAR)
A: The Solicitor General is correct. The authority of the City
of Cavite under R.A. No. 1899 to reclaim land is limited to
foreshore lands. The Act did not authorize it to reclaim land
from the sea. The reclamation being unauthorized, the City
of Cavite did not acquire ownership over the reclaimed
land. Not being the owner, it could not have conveyed any
portion thereof to the contractor.
J. ASSURANCE FUND
(2019 BAR)
1. NATURE OF ASSURANCE FUND
2. CONDITIONS FOR COMPENSATION FROM
ASSURANCE FUND
(2019 BAR)
Q: In 2015, O, the original registered owner of a 300-
square meter property covered by OCT No. 0-1234,
appointed F as its caretaker. A year after, while O was
abroad, F surreptitiously broke open O's safe and stole
the duplicate copy of the said OCT. F then forged a Deed
of Absolute Sale and made it appear that O sold the
property to him. Consequently, F was able to have OCT
No. 0-1234 cancelled and in lieu thereof, a new title,
TCT No. T-4321, was issued in his name.
A few months after, F offered the property for sale to X.
After conducting the required due diligence to verify
the title of F and finding no occupant in the property
during ocular inspection, X signed the contract of sale,
and thereupon, fully paid the purchase price. A few days
later, X was able to obtain TCT No. T-5678 under his
name.
When O discovered F's fraudulent acts upon his return
in 2017, O immediately filed a complaint for
reconveyance against F and X, principally pointing out
that F merely forged his signature in the Deed of
Absolute Sale purportedly made in F's favor and thus, F
100
 QuAMTO (1987-2022)
could not have validly transferred the title thereof to X.
Consequently, he sought the return of the subject
property to him.
Assuming that O could no longer recover the subject
property in view of X's registration thereof in his name,
may a claim against the Assurance Fund pursuant to the
provisions of the Property Registration Decree be
instituted? Explain. (2019 BAR)
A: YES, O may recover under the Assurance Fund because
under the provisions of the Property Registration Decree
(Sec. 95, P.D. 1529), if a person who is not guilty of
negligence sustains loss or damage or is deprived of land or
any estate in consequence of the bringing of the land under
the operation of the Torrens system arising after original
registration of land, through fraud or in consequence of any
error, omission, mistake or misdescription in any certificate
of title or in any entry or memorandum in the registration
book, and is barred or precluded from bringing an action for
recovery of such land may bring an action in any court of
competent jurisdiction for the recovery of damages to be
paid out of the Assurance Fund. In the case presented, the
property is already registered in the name of an innocent
purchaser for value and O may no longer recover the land
from the purchaser, an action for recovery against the
Assurance Fund is warranted. (Central Bar Q&A by
Paguirigan, 2023)
3. PRESCRIPTIVE PERIOD
K. RECONSTITUTION OF TITLES
(2022, 1996 BAR)
Q: In 2008, a fire razed the Register of Deeds of San
Fernando, Pampanga (RD). Several titles on file were
burned. Long before the fire, Tito, Vic, and Joey had
been living In a 350-sq.m. lot covered by TCT No. 49933,
which they inherited from their parents. The original of
TCT No. 49933 on file with the RD was among the titles
which were burned. To effect the partition agreed
among them, the siblings filed a verified petition for
reconstitution of the TCT before your court.
To support the petition, the siblings presented: (i) a
notarized affidavit of loss duly recorded and registered
with the RD; (ii) a photocopy of TCT No. 479 49933; (iii)
real property tax declarations and receipts to evidence
payment of real property taxes, together with the
sketch and subdivision plan; (iv) a Land Registration
Authority (LRA) Report which states that the survey
and subdivision plans and the technical description of
the property may be used as a basis for inscription of
the technical description of the reconstituted property;
(v) a microfilm copy of the plans and technical
description on file with the LRA; and (vi) the
Extrajudlcial Settlement of Estate executed among
101
them. The public prosecutor, duly deputized by the
OSG, prays for the denial of the petition, and argues that
the foregoing documents are insufficient for
reconstitution of TCT No. 49933.
Should the petition for reconstitution be granted?
Explain briefly. (2022 BAR)
A: NO, the petition for reconstitution should not be granted.
In a petition for reconstitution, the quantum of evidence
needed to grant it is clear and convincing evidence.
Evidence is clear and convincing if it produces in the mind
of the trier of fact a firm belief or conviction as to the
allegation sought to be established. (Dela Paz vs. Republic,
G.R. No. 195726, 20 Nov. 2017, 845 SCRA 34)
As such, the public officer who issued the document, such as
the LRA Report pertaining to the survey and subdivision
plan must testify in court otherwise the report would be
hearsay and bereft of any probative value. At best, they may
be considered only as prima facie evidence of their due
execution and date of issuance but do not constitute prima
facie evidence of the facts stated therein. (Republic v.
Manansala, G.R. No. 241890, 03 May 2021)
Based on the facts, the siblings merely presented the LRA
Report but the public officer who issued it was not called
upon to testify and be examined about the contents of the
report. Thus, the LRA Report which is vital to the
reconstitution petition has no probative value. Hence, the
petition for reconstitution should not be granted. (Central
Bar Q&A by Paguirigan, 2023)
Q: In 1989, the heirs of Gavino, who died on 10 Aug.
1987, filed a petition for reconstitution of his lost or
destroyed Torrens Title to a parcel of land in Ermita,
Manila. This was opposed by Marilou who claimed
ownership of the said land by a series of sales. She
claimed that Gavino had sold the property to Bernardo
way back in 1941 and as evidence thereof, she
presented a Tax Declaration in 1948 in the name of
Bernardo, which cancelled the previous Tax
Declaration in the name of Gavino. Then she presented
two deeds of sale duly registered with the Register of
Deeds, the first one executed by Bernardo in 1954
selling the same property to Carlos, and the second one
executed by Carlos in 1963, selling the same property
to her. She also claimed that she and her predecessors
in interest have been in possession of the property
since 1948.
If you were the judge, how will you decide the petition?
Explain. (1996 BAR)
A: If I were the judge, I will give due course to the petition
of the heirs of Gavino despite the opposition of Marilou for
the following reasons:
a) Judicial reconstitution of a certificate of title under
R.A. No. 26 partakes of a land registration proceeding
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
and is perforce a proceeding in rem. It denotes
restoration of an existing instrument which has been V. WILLS AND SUCCESSION
lost or destroyed in its original form and condition.
The purpose of reconstitution of title or any
document is to have the same reproduced, after
proceedings. In the same form they were when the
loss or destruction occurred. A. GENERAL PROVISIONS
(2012 BAR)
b) If the Court goes beyond that purpose, it acts without
or in excess of jurisdiction. Thus, where the Torrens
Title sought to be reconstituted is in the name of
Gavino, the court cannot receive evidence proving B. TESTAMENTARY SUCCESSION
that Marilou is the owner of the land. Marilou’s (2022, 2019, 2018, 2017, 2016, 2015, 2014, 2013,
dominical claim to the land should be ventilated in a 2012, 2011, 2010, 2009, 2008, 2007,2006, 2003, 2002,
separate civil action before the RTC in its capacity as 2001, 2000, 1999, 1997, 1996, 1994, 1999 BAR)
a court of general jurisdiction.

1. GENERAL PROVISIONS
(1996 BAR)

Q: Alfonso, a bachelor without any descendant or

ascendant, wrote a last will and testament in which he
devised." all the properties of which I may be possessed
at the time of my death" to his favorite brother Manuel.
At the time he wrote the will, he owned only one parcel
of land. But by the time he died, he owned twenty
parcels of land. His other brothers and sisters insist
that his will should pass only the parcel of land he
owned at the time it was written, and did not cover his
properties acquired, which should be by intestate
succession. Manuel claims otherwise. Who is correct?
Explain. (1996 BAR)

A: Manuel is correct because property acquired after the

making of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will, should it
expressly appear by the will that such was his intention.
(Art. 793, NCC) Since Alfonso's intention to devise all
properties he owned at the time of his death expressly
appears on the will, then all the 20 parcels of land are
included in the devise.

2. CHARACTERISTICS OF A WILL

3. NON-DELEGABILITY OF A TESTAMENTARY OF A
WILL

4. APPLICABLE LAW AS TO FORM AND

SUBSTANCE OF A WILL
(2015, 2014, 2011, 2000 BAR)

Q: Alden and Stela were both former Filipino citizens.

They were married in the Philippines, but they later
migrated to the United States where they were
naturalized as American citizens. In their union they
were able to accumulate several real properties both in
the US and in the Philippines. Unfortunately, they were

U N I V E R S IT Y O F S A N T O T O M A S 102
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
not blessed with children. In the US, they executed a
joint will instituting as their common heirs to divide
their combined estate in equal shares, the five siblings
of Alden and the seven siblings of Stela. Alden passed
away in 2013 and a year later, Stela also died. The
siblings of Alden who were all citizens of the US
instituted probate proceedings in a US court
impleading the siblings of Stela who were all in the
Philippines. (2015 BAR)
(a) Was the joint will executed by Alden and Stela
who were both former Filipinos valid? Explain
with legal basis.
A: YES, the joint will of Alden and Stela is valid. Being no
longer Filipino citizens at the time they executed their joint
will, the prohibition under our Civil Code on joint wills will
no longer apply to Alden and Stela. For as long as their will
was executed in accordance with the law of the place where
they reside, or the law of the country of which they are
citizens or even in accordance with the NCC, a will executed
by an alien is considered valid in the Philippines. (Art. 816,
NCC)
(b) Can the joint produce legal effect in the
Philippines with respect to the properties of
Alden and Stela found here? If so, how?
A: YES, the joint will of Alden and Stela can take effect even
with respect to the properties located in the Philippines
because what governs the distribution of their estate is no
longer Philippine law but their national law at the time of
their demise. Hence, the joint will produces legal effect even
with respect to the properties situated in the Philippines.
Q: Crispin died testate and was survived by Alex and
Josine, his children from his first wife; Rene and Ruby,
his children from his second wife; and Allan, Bea, and
Cheska, his children from his third wife. One important
provision in his will reads as follows:
"Ang lupa at bahay sa Lungsod ng Maynila ay ililipat at
ilalagay sa pangalan nila Alex at Rene hindi bilang
pamana ko sa kanila kundi upang pamahalaan at
pangalagaan lamang nila at nang ang sinuman sa aking
mga anak, sampu ng aking mga apo at kaapuapuhan ko
sa habang panahon, ay may tutuluyan kung magnanais
na mag-aral sa Maynila o sa kalapit na mga lungsod."
Is the provision valid? (2014 BAR)
A: NO, the provision imposing the division of the property
“habang panahon” is invalid. In Santiago v. Santiago (G.R.
No. 179859, 09 Aug. 2010), a similar provision appears in the
will. However, Art. 1083 of the NCC provides that the period
of indivision imposed by the testator shall not exceed 20
years. Hence, the provision leaving the administration of the
house and lot to Alex and Rene is valid but the provision
“habang buhay” is invalid as to the excess beyond 20 years.
103
Q: Ric and Josie, Filipinos, have been sweethearts for 5
years. While working in a European country where the
execution of joint wills are allowed, the two of them
executed a joint holographic will where they named
each other as sole heir of the other in case either of
them dies. Unfortunately, Ric died a year later.
Can Josie have the joint will successfully probated in the
Philippines? (2011 BAR)
(A) Yes, in the highest interest of comity of nations
and to honor the wishes of the deceased.
(B) No, since Philippine law prohibits the execution
of joint wills and such law is binding on Ric and
Josie even abroad.
(C) Yes, since they executed their joint will out of
mutual love and care, values that the generally
accepted principles of international law
accepts.
(D) Yes, since it is valid in the country where it was
executed, applying the principle of "lex loci
celebrationis."
A: (B) No, since Philippine law prohibits the execution of
joint wills and such law is binding on Ric and Josie even
abroad. (UPLC Suggested Answers)
Q: Manuel, a Filipino, and his American wife Eleanor,
executed a Joint Will in Boston, Massachusetts when
they were residing in said city. The law of
Massachusetts allows the execution of joint wills.
Shortly thereafter, Eleanor died. Can the said Will be
probated in the Philippines for the settlement of her
estate? (2000 BAR)
A: YES, the will may be probated in the Philippines insofar
as the estate of Eleanor is concerned. While the NCC
prohibits the execution of joint wills here and abroad, such
prohibition applies only to Filipinos. Hence, the joint will
which is valid where executed is valid in the Philippines but
only with respect to Eleanor. It is void with respect to
Manuel whose joint will remains void in the Philippines
despite being valid where executed. (Art. 819, NCC)
5. TESTAMENTARY CAPACITY
(2008 BAR)
Q: Stevie was born blind. He went to school for the blind,
and learned to read in Braille Language. He Speaks
English fluently. Can he: (2008 BAR)
(a) Make a will?
A: YES. Assuming that he is of legal age (Art. 797, NCC) and
of sound mind at the time of execution of the will (Art. 798,
NCC), Stevie, a blind person, can make a notarial will, subject
to compliance with the “two-reading rule” (Art. 808, NCC)
and the provisions of Arts. 804 and 806 of the NCC.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
(b) Act as a witness to a will?
A: NO, Stevie cannot be a witness to a will. Art. 820 of the
NCC provides that “any person of sound mind and of age of
eighteen years or more, and not blind, deaf or dumb, and
able to read and write, may be a witness to the execution of
a will.”
the testator and the witnesses signed at the bottom of the
instrument, it would be superfluous to still require that they
marginally sign the one page will. (Central Bar Q&A by
Paguirigan, 2023)
b. May the will nonetheless be admitted to
probate? Explain briefly.

(c) In either of the above instances, must the will A: NO, the will may not be admitted to probate because of
be read to him? the defective attestation clause. The attestation clause must
state the number of pages used in the will and the fact that
A: YES. The will must be read to him twice, once by one of the testator signed the will in the presence of the attesting
the subscribing witnesses, and again, by the notary public witnesses and that the witnesses signed the will not only in
before whom the will is acknowledged. (Art. 808, NCC) the presence of one another but also in the presence of the
testator. The attestation clause in Miguel's will failed to
6. FORM OF NOTARIAL AND HOLOGRAPHIC WILLS state that the attesting witnesses signed the will in the
(2022, 2012, 2008, 1996 BAR) presence of the testator. Thus, the attestation clause is
fatally defective which renders the will void. (Caneda v.
Court of Appeals, G.R. No. 103554, 28 May 1993) (Central Bar
Q: Miguel, who died single and childless, was survived
Q&A by Paguirigan, 2023)
by his two legitimate brothers Romy and Rolly, and his
nephews Arno and Pabs, the legitimate sons of his
Q: Arthur executed a will which contained only: (i) a
predeceased legitimate brother Edgar. Before his
provision disinheriting his daughter Bernica for
death, Miguel executed a one-page notarial will,
running off with a married man, and (ii) a provision
inclusive of an attestation clause and a notarial
disposing of his share in the family house and lot in
acknowledgment, with only one testamentary
favor of his other children Connie and Dora.
disposition bequeathing his entire estate to Romy and
Rolly. The will was not paginated and was attested by
He did not make any provisions in favor of his wife
four witnesses: Uno, Dos, Tres, and Quatro. It was the
Erica, because as the will stated, she would anyway get
eve of Quatro’s 17 th birthday when the will was
½ of the house and lot as her conjugal share. The will
executed. The will was written in the Ilocano dialect
was very brief and straight forward and both the above
which Miguel knew and understood, but the witnesses
provisions were contained in page 1, which Arthur and
did not. Miguel and the witnesses signed at the end of
his instrumental witness, signed at the bottom. Page 2
the testamentary disposition. The attestation was also
contained the attestation clause and the signatures, at
written in the Ilocano dialect which, when translated to
the bottom thereof, of the 3 instrumental witnesses
the English language, reads as follows:
which included Lambert, the driver of Arthur; Yoly, the
family cook, and Attorney Zorba, the lawyer who
“This will of Miguel was written in ONE page. We, the
prepared the will. There was a 3 rd page, but this only
attesting witnesses, signed at the end of the will and at
contained the notarial acknowledgement.
the bottom of this attestation in the presence of Miguel
and of each of us.”
The attestation clause stated the will was sighed on the
same occasion by Arthur and his instrumental
Each of the four witnesses signed below the attestation
witnesses who all signed in the presence of each other,
clause. Because none of the witnesses knew and
and the notary public who notarized the will. There are
understood the Ilocano dialect, the attestation was
no marginal signatures or pagination appearing on any
interpreted to them by Miguel’s lawyer who was
of the 3 pages. Upon his death, it was discovered that
present to notarize the will. (2022 BAR)
apart from the house and lot, he has a P1 million
account deposited with ABC back.
a. Does the fact that the will was written in a
dialect known only to Miguel invalidate the
What other defects of the will, if any, can cause denial of
will? What about the absence of the marginal
probate? (2008 BAR)
signatures of the testator and the witnesses?
Explain briefly.
A: The other defects of the will that can cause its denial are
as follows: (a) Atty. Zorba, the one who prepared the will
A: NO. The law requires that the will must be written in a
was one of the three witnesses, violating the three-
language or dialect known to the testator (Art. 804, NCC),
witnesses rule; (b) no marginal signature at the last page;
but it does not require that the language of the will be
(c) the attestation did not state the number of pages upon
known to the attesting witnesses. On the other hand, the
which the will is written; and, (d) no pagination appearing
lack of marginal signatures will not invalidate the will
correctively in letters on the upper part of the three pages.
because the will was contained in only one page and since
(Azuela v. Court of Appeals, G.R. No. 122880, 12 Apr. 2006;

U N I V E R S IT Y O F S A N T O T O M A S 104
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
Arts. 805 and 806)
Q: Natividad’s holographic will, which had only one (1)
substantial provision, as first written, named Rosa as
her sole heir. However, when Gregorio presented it for
probate, it already contained an alteration, naming
Gregorio, instead of Rosa, as sole heir, but without
authentication by Natividad’s signature. Rosa opposes
the probate alleging such lack of proper authentication.
She claims that the unaltered form of the will should be
given effect.
Whose claim should be granted? Explain. (2012, 1996
BAR)
A: It depends. If the cancellation of Rosa's name in the will
was done by the testator himself, Rosa's claim that the
holographic will in its original tenor should be given effect
must be denied. The said cancellation has revoked the
entire will as nothing remains of the will after the name of
Rosa was cancelled. Such cancellation is valid revocation of
the will and does not require authentication by the full
signature of the testator to be effective. However, if the
cancellation of Rosa's name was not done by the testator
himself, such cancellation shall not be effective and the will
in its original tenor shall remain valid. The efficacy of a
holographic will cannot be left to the mercy of unscrupulous
third parties. The writing of Gregorio‘s name as sole heir
was ineffective, even though written by the testator himself,
because such is an alteration that requires the
authentication by the full signature of the testator to be
valid and effective. Not having been authenticated. The
designation of Gregorio as an heir was ineffective. (Kalaw v.
Relova, G.R. No. L-40207, 28 Sept. 1984)
7. WITNESSES OF A NOTARIAL WILL (QUALIFICATIONS
AND DISQUALIFICATIONS)
(2007, 1994 BAR)
Q: Clara, thinking of her mortality, drafted a will and
asked Roberta, Hannah, Luisa and Benjamin to be
witnesses. During the day of signing of her will, Clara
fell down the stairs and broke her arms. Coming from
the hospital, Clara insisted on signing her will by thumb
mark and said that she can sign her full name later.
While the will was being signed, Roberta experienced a
stomachache and kept going to the restroom for long
periods of time. Hannah, while waiting for her turn to
sign the will, was reading the 7th Harry Potter book on
the couch, beside the table on which everyone was
signing. Benjamin, aside from witnessing the will, also
offered to notarize it. A week after, Clara was run over
by a drunk driver while crossing the street in Greenbelt.
May the will of Clara be admitted to probate? Give your
reasons briefly. (2007, 1994 BAR)
105
A: NO, the probate should be denied. The requirement that
the testator and at least three witnesses must sign all in the
“presence” of one another was not complied with. Benjamin
who notarized the will is disqualified as a witness, hence he
cannot be counted as one of the three witnesses. (Cruz v.
Villasor, G.R. No. L-32213, 26 Nov. 1973) The testatrix and
the other witnesses signed the will not in the presence of
Roberta because she was in the restroom for extended
periods of time. Inside the restroom, Roberta could not have
possibly seen the testatrix and the other witnesses sign the
will by merely casting her eyes in the proper direction.
(Jaboneta v. Gustilo, G.R. No. 1641, 19 Jan. 1906; Nera v.
Rimando, G.R. No. L-5971, 27 Feb. 1911) Therefore, the
testatrix signed the will in the presence of only two
witnesses, and only two witnesses signed the will in the
presence of the testatrix and of one another.
It is to be noted, however, that the thumb mark intended by
the testator to be his signature in executing his last will and
testament is valid. (Payad v. Tolentino, G.R. No. 42258, 05
Sept. 1936; Matias v. Salud, G.R. No. L-10751, 23 June 1958)
The problem, however, states that Clara “said that she can
sign her full name later;” Hence, she did not consider her
thumb mark as her “complete” signature, and intended
further action on her part. The testatrix and the other
witness signed the will in the presence of Hannah, because
she was aware of her function and role as witness and was
in a position to see the testatrix and the other witnesses sign
by merely casting her eyes in the proper direction.
8. CONFLICT RULES
9. MODES OF REVOCATION OF WILLS AND
TESTAMENTARY DISPOSITION
(2022 BAR)
Q: In 2013, Agaton, then 70 years old, executed a will
wherein he bequeathed his entire estate to his
acknowledged illegitimate son Karl. Agaton entrusted
the original copy of the 2013 will to Karl. In 2014, Karl
joined a group of mercenaries to fight in Crimea
alongside the Russians. After Russia’s annexation of
Crimea, Karl did not return to the Philippines and was
never heard of. Five years later, in 2019, Agaton
executed a codicil which provided the following:
“Because of the death of Karl, I revoke my 2013 will. I
hereby recognize Gian as my other illegitimate son, and
hereby bequeath to him my entire estate.” Agaton died
in 2020. During the probate of Agaton’s 2019 codicil,
Karl appeared in court, presented the 2013 will,
contested the validity of its revocation, opposed the
probate of the 2019 codicil, and sought the probate of
the 2013 will. Both the 2013 will and 2019 codicil were
immaculate as to form. (2022 BAR)
(a) Did the 2019 codicil revoke the 2013 will?
Explain briefly.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: NO, the 2019 Codicil did not revoke the 2013 will. The
revocation of a will based on a false cause, or an illegal cause
is null and void. (Art. 833, NCC). In addition, the statement
of a false cause for the institution of an heir shall be
considered as not written, unless it appears from the will
that the testator would not have made such institution if he
had known the falsity of such cause. (Art. 850, NCC) Based
on the facts presented, Agaton revoked the 2013 will and
executed the 2019 will on the mistaken belief that Karl is
already dead. This is evident in the words of the will itself
which states that "Because of the death of Karl, I revoke my
2013 will." Hence, the revocation is not valid. (Central Bar
Q&A by Paguirigan, 2023)
(b) Distribute the estate of Agaton. Explain briefly.
A: The estate of Agaton shall be distributed in accordance
with the rules on intestacy. Hence, Karl and Gian will get
equal shares. Despite the invalidity of the revocation of the
2013 will, the preterition of Gian in the 2013 will shall annul
the institution of Karl because Gian is also a compulsory
heir in the direct line, and he was totally omitted in the 2013
will of Agaton. Hence, with the preterition of Gian, the 2013
will is intrinsically void and intestacy shall govern the
distribution of Agaton's estate. (Central Bar Q&A by
Paguirigan, 2023)
a) EFFECT OF THE RECOGNITION OF A NON-MARITAL
CHILD
(2014 BAR)
Q: Mario executed his last will and testament where he
acknowledges the child being conceived by his live-in
partner Josie as his own child; and that his house and
lot in Baguio City be given to his unborn conceived
child. Are the acknowledgment and the donation mortis
causa valid? Why? (2014 BAR)
A: YES, the acknowledgment is considered valid because a
will (although not required to be filed by the notary public)
may still constitute a document, which contains an
admission of illegitimate filiation. The recognition of an
illegitimate child does not lose its legal effect even though
the will wherein it was made should be revoked. (Art. 834,
NCC) This provision by itself warrants a conclusion that a
will may be considered as proof of filiation. The donation
mortis causa may be considered valid because although
unborn, a fetus has a presumptive personality for all
purposes favorable to it provided it be born under the
conditions specified in Art. 41, NCC.
b) THEORY OF DEPENDENT RELATIVE REVOCATION
(2018, 2003, 1997 BAR)
Q: Sydney, during her lifetime, was a successful lawyer.
By her own choice, she remained unmarried and
devoted all her time to taking care of her nephew and
two (2) nieces: Socrates, Saffinia, and Sophia. She wrote
a will giving all her properties remaining upon her
death to the three (3) of them. The will was admitted to
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
probate during her lifetime. Later, she decided to make
a new will giving all her remaining properties only to
the two (2) girls, Saffinia and Sophia. She then tore up
the previously probated will. The second will was
presented for probate only after her death. However,
the probate court found the second will to be void for
failure to comply with formal requirements. (2018
BAR)
(a) Will the doctrine of dependent relative revocation
apply?
A: NO, the said doctrine will not apply. In the case of Molo v.
Molo (G.R. No. L-2538, 21 Sept. 1951), the court stated that
the doctrine of relative revocation is a rule where
revocation of the old will is a suspensive condition or
depends upon the efficacy of the new disposition, and if the
new will intended as a substitute is inoperative, the
revocation fails and the original will remains in force. This
was applied based on the fact that the original will appears
to be lost; hence, the second will was executed with a
revocatory clause, but in both instances, the wife was
instituted as the universal heir. In this case, however, the
revocation of the original was not through the execution of
a subsequent will with a revocatory clause, but through
destruction with intent to do so. It does not appear either
that the revocation of the old will operates as a suspensive
condition to the efficacy of the subsequent will, because the
testator revoked the 1st original will, as she does not wish
to institute the same heirs, unlike in Molo v. Molo where the
wife was the heir in both wills.
ALTERNATIVE ANSWER:
YES. The doctrine of revocation will apply. In Diaz v. De Leon
(G.R. No. L-17714, May 31, 1922), it was ruled that there was
no revocation either by subsequent will (for same was
invalid) or an overt act (since the act of destruction or
tearing the first will was prompted by the false belief that
the second will had been validly executed). In this case, it is
presumed that Sydney never intended to die intestate. Thus,
the revocation of the first will depended on the finding of
validity of the 2nd will. The latter being found invalid, 1st
will stands.
(b) Will your answer be the same if the second will
was found to be valid but both Saffinia and Sophia
renounced their inheritance?
A: YES, my answer will be the same. The doctrine of
dependent relative revocation does not apply where the
new will is rendered ineffective due to the renunciation of
the heirs instituted therein. Renunciation has nothing to do
with the validity of the will, but only pertains to whether or
not the heirs accept their share in the inheritance. Since the
new will is still valid, the doctrine does not apply. (Art. 832,
NCC)
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 QuAMTO (1987-2022)
ALTERNATIVE ANSWER: c) REVOCATION BASED ON A FALSE CAUSE

NO. My answer will not be the same. According to the law, 10. HEIRS
dependent relative revocation only applies if the new will is (2019, 2017, 2012, 2002, 1990 BAR)
void. Here the second will is valid, regardless of the fact that
the same was renounced.
a) COMPULSORY HEIRS
(2017, 2012 BAR)
Q: Mr. Reyes executed a will completely valid as to form.
A week later, however, he executed another will which
Q: Pedro had worked for 15 years in Saudi Arabia when
expressly revoked his first will, which he tore his first
he finally decided to engage in farming in his home
will to pieces. Upon the death of Mr. Reyes, his second
province where his 10-hectare farmland valued at
will was presented for probate by his heirs, but it was
₱2,000,000.00 was located. He had already
denied probate due to formal defects. Assuming that a
₱3,000,000.00 savings from his long stint in Saudi
copy of the first will is available, may it now be admitted
Arabia.
to probate and given effect? Why? (2003 BAR)

Eagerly awaiting Pedro's arrival at the NAIA were his

A: YES, the first will may be admitted to probate and given
aging parents Modesto and Jacinta, his common-law
effect. When the testator tore first will, he was under the
spouse Veneranda, their three children, and Alex, his
mistaken belief that the second will was perfectly valid and
child by Carol, his departed legal wife. Sadly, for all of
he would not have destroyed the first will had he known
them, Pedro suffered a stroke because of his
that the second will is not valid. The revocation by
overexcitement just as the plane was about to land, and
destruction therefore is dependent on the validity of the
died without seeing any of them. The farmland and the
second will. Since it turned out that the second will was
savings were all the properties he left. (2017 BAR)
invalid, the tearing of the first will did not produce the effect
of revocation. This is known as the doctrine of dependent
(a) State who are Pedro's legal heirs, and the shares
relative revocation. (Molo v. Molo, G.R. No. L-2538, 21 Sept.
of each legal heir to the estate? Explain your
1951)
answer.

Q: Johnny, with no known living relatives, executed a

A: The shares to Pedro’s estate are as follows: Alex shall
notarial will giving all his estate to his sweetheart. One
inherit 1/2 of the estate of Pedro while the other 3 children
day, he had a serious altercation with his sweetheart. A
to Veneranda is entitled to 1/6 each of the estate because
few days later, he was introduced to a charming lady
they are illegitimate children. Under the NCC, a legitimate
who later became a dear friend. Soon after, he executed
child shall inherit 1/2 of the estate while under our family
a holographic will expressly revoking the notarial will
code, illegitimate children are only entitled to half of the
and so designating his new friend as sole heir. One day
share of the legitimate child.
when he was clearing up his desk, Johnny mistakenly
burned, along with other papers, the only copy of his
While Veneranda is not an heir since she is not the legal
holographic will. His business associate, Eduardo knew
spouse of Pedro while Modesto and Jacinta are excluded
well the contents of the will which was shown to him by
because Pedro has children. Under the NCC, parents are
Johnny the day it was executed. A few days after the
excluded from the shares of their child when the child has
burning incident, Johnny died. Both wills were sought
legal descendants.
to be probated in two separate petitions.

(b) Assuming that Pedro's will is discovered soon

Will either or both petitions prosper? (1997 BAR)
after his funeral. In the will, he disposed of half
of his estate in favor of Veneranda, and the
A: The probate of the notarial will shall prosper. The
other half in favor of his children and his
holographic will cannot be admitted to probate because a
parents in equal shares. Assuming also that the
holographic will can only be probated upon evidence of the
will is admitted to probate by the proper court.
will itself unless there is a photographic copy. But since the
Are the testamentary dispositions valid and
holographic will was lost and there was no other copy, it
effective under the law on succession? Explain
cannot be probated. Therefore, the notarial will shall be
your answer.
admitted to probate because there is no revoking will.

A: NO, the testamentary disposition are not valid and

In the case of Gan vs. Yap (G.R. No. L-12190, 30 Aug. 1958),
effective because such testamentary disposition must not
the execution and the contents of a lost or destroyed
impair the legitimes of the testator’s compulsory heirs.
holographic will may not be proved by the bare testimony
Under the NCC, for the testamentary dispositions be
of witnesses who have seen or read such will. The will itself
effective, the legitimes of the respective compulsory heirs
must be presented otherwise it shall produce no effect. The
must not be impaired by such testamentary dispositions.
law regards the document itself as material proof of
authenticity.

107 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
In this case, the dispositions impair the legitimes of Pedro’s
children, which are as follows:(i) 1/2 of the estate to Alex;
(ii) 1/4 of the estate each to the three illegitimate children,
which shall be proportionally reduced since the legitimes
already exceed the balance of the estate. Hence, the
testamentary dispositions are not valid and effective.
Q: Ricky and Arlene are married. They begot Franco
during their marriage. Franco had an illicit relationship
with Audrey and out of which, they begot Arnel. Franco
predeceased Ricky, Arlene and Arnel. Before Ricky
died, he executed a will which when submitted to
probate was opposed by Arnel on the ground that he
should be given the share of his father, Franco.
Is the opposition of Arnel correct? Why? (2012 BAR)
A: NO, his opposition is not correct. Arnel cannot inherit
from Ricky in representation of his father, Franco. The
representative must not only be a legal heir of the person he
is representing but he must also be a legal heir of the
decedent he seeks to inherit from.
While Arnel is a legal heir of Franco, he is not a legal heir of
Ricky because an illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother. (Art. 992, NCC) Arnel is disqualified to
Inherit from Ricky because Arnel is an illegitimate child of
Franco and Ricky is a legitimate relative of Franco.
b) INSTITUTION OF HEIRS
(1990 BAR)
Q: H died leaving a last will and testament wherein it is
stated that he was legally married to W by whom he had
two legitimate children A and B. H devised to his said
forced heirs the entire estate except the free portion
which he gave to X who was living with him at the time
of his death. In said will, he explained that he had been
estranged from his wife W for more than 20 years and
he has been living with X as man and wife since his
separation from his legitimate family. In the probate
proceedings, X asked for the issuance of letters
testamentary in accordance with the will wherein she
is named sole executor. This was opposed by W and her
children. (1990 BAR)
(a) Should the will be admitted in said probate
proceedings?
A: YES, the will may be probated if executed according to
the formalities prescribed by law.
(b) Is the said devise to X valid?
A: NO, the institution giving X the free portion is not valid,
because the prohibitions under Art. 739 of the NCC on
donations also apply to testamentary dispositions (Art.
1028, NCC), among donations which are considered void are
those made between persons who were guilty of adultery or
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2023 GOLDEN NOTES
concubinage at the time of the donation.
(c) Was it proper for the trial court to consider the
intrinsic validity of the provisions of said will?
Explain your answers.
A: As a general rule, the will should be admitted in probate
proceedings if all the necessary requirements for its
extrinsic validity have been met and the court should not
consider the intrinsic validity of the provisions of said will.
However, the exception arises when the will in effect
contains only one testamentary disposition. In effect, the
only testamentary disposition under the will is the giving of
the free portion to X, since legitimes are provided by law.
Hence, the trial court may consider the intrinsic validity of
the provisions of said will. (Nuguid v. Nuguid, G.R. No. L-
23445, 23 June 1966; Nepomuceno v. Court of Appeals, G.R. L-
62952, 09 Oct. 1985)
1) LIMITATIONS ON THE INSTITUTION OF HEIRS
2) COLLECTIVE INSTITUTION
3) PROSCRIPTION AGAINST SUCCESSIVE INSTITUTION
4) INSTITUTION BASED ON A FALSE CAUSE
c) SUBSTITUTION OF HEIRS
(2019, 2002 BAR)
Q: Distinguish between simple and fideicommissary
substitution of heirs. (2002 BAR)
A: In a simple substitution of heirs, the testator designates
one or more persons to substitute the heirs instituted in
case such heir or heirs should die before him or should not
wish or should be incapacitated to accept the inheritance.
In a fideicommissary substitution, the testator institutes a
first heir and charges him to preserve and transmit the
whole or part of the inheritance to a second heir. In a simple
substitution, only one heir inherits. In a fideicommissary
substitution, both the first and second heirs inherit. (Art.
859 & 869, NCC)
1) CAUSES OF SUBSTITUTION
2) FIDEICOMMISARY SUBSTITUTION
(COMPARED WITH TESTAMENTARY TRUSTS)
(2019 BAR)
Q: M. single, named his sister N in his will, as a devisce
over a certain parcel of land that he owned, with the
obligation of preserving the land and transferring it,
upon N’s death, to her illegitimate daughter O. who was
then only a year old. Is the condition imposed on N to
preserve the land and to transmit it upon her death to a
valid case of fideicommissary substitution? Explain.
(2019 BAR)
108
 QuAMTO (1987-2022)
A: YES, this is a valid case of fideicommissary substitution.
Art. 863 of the NCC provides that a fideicommissary
substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and
to transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect, provided
such substitution does not go beyond one degree from the
heir originally instituted. First, there is the absolute
obligation imposed upon the fiduciary N to preserve and to
transmit to the fideicommissary the part of the inheritance.
Second, O, the fideicommissary, as the fiduciary’s
illegitimate daughter is one degree from the fiduciary.
Furthermore, O’s illegitimate status is of no moment,
because Art. 863, referring to the “heir” does not distinguish
between legitimate from illegitimate relationships. (UPLC
Suggested Answers)
11. LEGITIME
(2016, 2012, 2006, 1999 BAR)
Q: How can RJP distribute his estate by will, if his heirs
are JCP, his wife; HBR and RVC, his parents; and an
illegitimate child, SGO? (2012 BAR)
A: Testator may dispose of by will the free portion of his
estate. Since the legitime of JCP is 1/8 of the estate, SGO is
1/4 of the estate and that of HBR and RVC is 1/2 of the
hereditary estate under Art. 889, NCC, the remaining 1/8 of
the estate is the free portion which the testator may dispose
of by will.
Q: Don died after executing a Last Will and Testament
leaving his estate valued at P12 Million to his common-
law wife Roshelle. He is survived by his brother Ronie
and his half-sister Michelle. (2006 BAR)
(a) Was Don's testamentary disposition of his
estate in accordance with the law on
succession? Whether you agree or not, explain
your answer. Explain.
A: YES, Don's testamentary disposition of his estate is in
accordance with the law on succession. Don has no
compulsory heirs not having ascendants, descendants nor a
spouse. (Art. 887, NCC) Brothers and sisters are not
compulsory heirs. Thus, he can bequeath his entire estate to
anyone who is not otherwise incapacitated to inherit from
him. A common-law wife is not incapacitated under the law,
as Don is not married to anyone.
(b) If Don failed to execute a will during his
lifetime, as his lawyer, how will you distribute
his estate? Explain.
A: After paying the legal obligations of the estate, I will give
Ronie, as full-blood brother of Don, 2/3 of the net estate,
twice the share of Michelle, the half-sister who shall receive
1/3. Roshelle will not receive anything as she is not a legal
heir. (Art. 1006, NCC)
109
a) COLLATION IN CONNECTION WITH THE
COMPUTATION OF LEGITIME
b) TABLE OF LEGITIME
c) IMPAIRMENT OF THE LEGITIME
d) PRESUMPTIVE LEGITIME
(1999 BAR)
Q: What do you understand by "presumptive legitime",
in what case or cases must the parent deliver such
legitime to the children, and what are the legal effects
in each case if the parent fails to do so? (1999 BAR)
A: Presumptive legitime is not defined in the law. Its
definition must have been taken from Act 2710, the Old
Divorce Law, which required the delivery to the legitimate
children of “the equivalent of what would have been due to
them as their legal portion if said spouse had died intestate
immediately after the dissolution of the community of
property.” As used in the Family Code, presumptive legitime
is understood as the equivalent of the legitimate children’s
legitimes assuming that the spouses have died immediately
after the dissolution of the community of property.
Presumptive legitime is required to be delivered to the
common children of the spouses when the marriage is
annulled or declared void ab initio and possibly, when the
conjugal partnership or absolute community is dissolved as
in the case of legal separation. Failure of the parents to
deliver the presumptive legitime will make their
subsequent marriage null and void under Art. 53, FC.
12. PRETERITION
(2014, 2012, 2008, 2001, 1999 BAR)
Q: Arthur executed a will which contained only: (i) a
provision disinheriting his daughter Bernica for
running off with a married man, and (ii) a provision
disposing of his share in the family house and lot in
favor of his other children Connie and Dora. He did not
make any provisions in favor of his wife Erica, because
as the will stated, she would anyway get ½ of the house
and lot as her conjugal share. The will was very brief
and straight forward and both the above provisions
were contained in page 1, which Arthur and his
instrumental witness, signed at the bottom. Page 2
contained the attestation clause and the signatures, at
the bottom thereof, of the 3 instrumental witnesses
which included Lambert, the driver of Arthur; Yoly, the
family cook, and Attorney Zorba, the lawyer who
prepared the will. There was a third page, but this only
contained the notarial acknowledgement. The
attestation clause stated the will was signed on the
same occasion by Arthur and his instrumental
witnesses who all signed in the presence of each other,
and the notary public who notarized the will. There are
no marginal signatures or pagination appearing on any
of the 3 pages. Upon his death, it was discovered that
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
apart from the house and lot, he has a P1 million (b) In the preceding question, suppose Mr. Cruz
account deposited with ABC back. instituted his two children A and B as his heirs
in his Will, but gave a legacy of P 100,000.00 to
Was Erica preterited? (2008 BAR) his friend F. How should the estate of Mr. Cruz
be divided upon his death? Explain.
A: NO. Erica was not preterited. Art. 854, NCC provides that
only compulsory heirs in the direct line can be preterited. A: On the same assumption as letter (a), there was
preterition of C. Therefore, the institution of A and B is
a) REQUISITES annulled but the legacy of P100.000.00 to F shall be
respected for not being inofficious. Therefore, the
b) GOVERNING LAW remainder of P900.000.00 will be divided equally among A,
(2008, 2001, 1999 BAR) B, and C.

Q: Because her eldest son Juan had been pestering her 13. CONDITIONAL DISPOSITIONS AND DISPOSITIONS
for capital to start a business, Josefa gave him P100,000.
Five years later, Josefa died, leaving a last will and
Q: Distinguish between modal institution and
testament in which she instituted only her four younger
substitution of heirs. (2002 BAR)
children as her sole heirs. At the time of her death, her
only properly left was P900,000.00 in a bank. Juan
A: A modal institution is the institution of an heir made for
opposed the will on the ground of preterition. How
a certain purpose or cause. (Arts. 871 & 882, NCC)
should Josefa's estate be divided among her heirs? State
Substitution is the appointment of another heir so that he
briefly the reason(s) for your answer. (2001 BAR)
may enter into the inheritance in default of the heir
originality instituted. (Art. 857, NCC)
A: There was no preterition of the oldest son because the
testatrix donated P100,000 to him. This donation is
a) CONDITION NOT TO MARRY
considered an advance on the son's inheritance. There
being no preterition, the institutions in the will shall be
b) DISPOSICION CAPTATORIA
respected but the legitime of the oldest son has to be
completed if he received less. After collating the donation of
c) MODAL INSTITUTION
P100,000 to the remaining property of P900,000, the estate
(2002 BAR)
of the testatrix is P1,000,000. Of this amount, one-half or
P500,000, is the legitime of the legitimate children and it
Q: By virtue of a Codicil appended to his will, Theodore
follows that the legitime of one legitimate child is P100,000.
devised to Divino a tract of sugar land, with the
The legitime, therefore, of the oldest son is P100,000.
obligation on the part of Divino or his heirs to deliver to
However, since the donation given him was P100,000, he
Betina a specified volume of sugar per harvest during
has already received in full his legitime and he will not
Betina’s lifetime. It is also stated in the Codicil that in
receive anything anymore from the decedent. The
the event the obligation is not fulfilled, Betina should
remaining P900,000, therefore, shall go to the four younger
immediately seize the property from Divino or latter’s
children by institution in the will, to be divided equally
heirs and turn it over to Theodore’s compulsory heirs.
among them. Each will receive P225,000.
Divino failed to fulfill the obligation under the Codicil.
Betina brings suit against Divino for the reversion of
Q: Mr. Cruz, widower, has three legitimate children, A,
the tract of land. Does Betina have a cause of action
B and C. He executed a Will instituting as his heirs to his
against Divino? Explain. (2002 BAR)
estate of P1,000,000.00 his two children A and B, and
his friend F. (1999 BAR)
A: YES, Betina has a cause of action against Divino. This is a
case of a testamentary disposition subject to a mode and the
(a) Upon his death, how should Mr. Cruz's estate be
will itself provides for the consequence if the mode is not
divided? Explain.
complied with. To enforce the mode, the will itself gives
Betina the right to compel the return of the property to the
A: Assuming that the institution of A, B and F were to the
heirs of Theodore. (Rabadilla v. CA, G.R. No. 113725, 29 June
entire estate, there was preterition of C since C is a
2000)
compulsory heir in the direct line. The preterition will result
in the total annulment of the institution of heirs. Therefore,
the institution of A, B and F will be set aside and Mr. Cruz’s
estate will be divided, as in intestacy, equally among A, B
and C as follows: A - P333,333.33; B - P333.333.33; and C -
P333,333.33.

U N I V E R S IT Y O F S A N T O T O M A S 110
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
14. VOID TESTAMENTARY DISPOSITIONS was preterited. (2012, 2008, 2000 BAR)
(2012, 2010, 2008, 2003, 2000 BAR)
(a) Should the will be admitted to probate? Explain.

Q: Ramon, a Filipino, executed a will in Manila, where

A: NO, the will should not be admitted to probate since the
he left his house and located in BP Homes Parañaque in
couple are both Filipino citizens. Arts. 818 and 819 of the
favor of his Filipino son, Ramgen. Ramon’s other
NCC shall apply. Said Articles prohibit the execution of joint
children RJ and Ramona, both Turkish nationals, are
wills and make them void, even though authorized by the
disputing the bequest to Ramgen. They plotted to kill
laws of the country where they were executed.
Ramgen. Ramon learned of the plot, so he tore his will
in two pieces out of anger. Which statement is most
(b) Are the testamentary dispositions valid?
accurate? (2012 BAR)
Explain.

(a) The mere act of Ramon Sr. is immaterial

A: NO. Since the joint will is void, all the testamentary
because the will is still readable.
dispositions written therein are also void. However, if the
(b) The mere act of tearing the will amounts to
will is valid, the institutions of heirs shall be annulled
revocation.
because Joshur was preterited. He was preterited because
(c) The tearing of the will may amount to
he will receive nothing from the will, will receive nothing by
revocation if coupled with intent of revoking it.
intestacy, and the facts do not show that he received
(d) The act of tearing the will is material.
anything as an advance on his inheritance. He was totally
excluded from the inheritance of his parents.
A: (c) The tearing of the will may amount to revocation if
coupled with intent of revoking it. (UPLC Suggested
(c) Is the testamentary prohibition against the
Answers)
division of the London estate valid? Explain.

Q: True or False. X, a widower, died leaving a will stating

A: Assuming the will of John and Maria is valid, the
that the house and lot where he lived cannot be
testamentary prohibition on the division of the London
partitioned for as long as the youngest of his four
estate shall be valid but only for 20 years. A testamentary
children desires to stay there. As coheirs and co-
disposition of the testator cannot forbid the partition of all
owners, the other three may demand partition anytime.
or part of his estate for a period longer than twenty (20)
(2010 BAR)
years. (Arts. 1083 & 494, NCC)

A: FALSE. The other three co–heirs may not anytime

Q: Mr. Reyes executed a will completely valid as to form.
demand the partition of the house and lot since it was
A week later, however, he executed another will which
expressly provided by the decedent in his will that the same
expressly revoked his first will, upon which he tore his
cannot be partitioned while his youngest child desires to
first will to pieces. Upon the death of Mr. Reyes, his
stay there. A decedent to prohibit, by will, the partition of a
second will was presented for probate by his heirs, but
property and his estate for a period not longer than 20 years
it was denied due to formal defects. Assuming that a
no matter what his reason maybe. (Art. 1083, NCC) Hence,
copy of the first will is available, may it now be admitted
the three co-heir can demand its partition only after 20
to probate and given effect? Why? (2003 BAR)
years from the death of their father. Even if the deceased
parent did not leave a will, if the house and lot constituted
A: YES. The first will may be admitted to probate and given
their family home, partition is prohibited for a period of 10
effect because the will that was supposed to revoke the
years, or for as long as there is a minor beneficiary living in
same was never admitted to probate on account of formal
the family home. (Art. 159, FC)
defects. Admission to probate of the subsequent revoking
will is one of the requisites for express revocation to take
Q: John Sagun and Maria Carla Camua, British citizens
place.
at birth, acquired Philippine citizenship by
naturalization after their marriage. During their
marriage, the couple acquired substantial landholdings
in London and in Makati. Maria begot three (3)
children, Jorge, Luisito, and Joshur. In one of their trips
to London, the couple executed a joint will appointing
each other as their heirs and providing that upon the
death of the survivor between them, the entire estate
would go to Jorge and Luisito only but the two (2) could
not dispose of nor divide the London estate as long as
they live. John and Maria died tragically in the London
subway terrorist attack in 2005. Jorge and Luisito filed
a petition for probate of their parents’ will before a
Makati RTC. Joshur vehemently objected because he

111 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
15. DISINHERITANCE D-2 P166,666.66 + P250,000.00
(2019, 2008 BAR)
Q: In his last will and testament, Lamberto 1)
disinherits his daughter Wilma because "she is
a) GROUNDS FOR DISINHERITANCE
disrespectful towards me and raises her voice talking
(2008 BAR)
to me", 2) omits entirely his spouse Elvira, 3) leaves a
legacy of P100,000.00 to his mistress Rosa and
Q: Arthur executed a will which contained only: (i) a
P50,000.00 to his driver Ernie and 4) institutes his son
provision disinheriting his daughter Bernica for
Baldo as his sole heir.
running off with a married man, and (ii) a provision
disposing of his share in the family house and lot in
How will you distribute his estate of P1,000,000.00?
favor of his other children Connie and Dora. He did not
(2000 BAR)
make any provisions in favor of his wife Erica, because
as the will stated, she would anyway get ½ of the house
A: The disinheritance of Wilma was ineffective because the
and lot as her conjugal share. The will was very brief
ground relied upon by the testator does not constitute
and straight forward and both the above provisions
maltreatment under Art. 919(6), NCC. Hence, the
were contained in page 1, which Arthur and his
testamentary provisions in the will shall be annulled but
instrumental witness, signed at the bottom. Page 2
only to the extent that her legitime was impaired.
contained the attestation clause and the signatures, at
the bottom thereof, of the 3 instrumental witnesses
The total omission of Elvira does not constitute preterition
which included Lambert, the driver of Arthur; Yoly, the
because she is not a compulsory heir in the direct line. Only
family cook, and Attorney Zorba, the lawyer who
compulsory heirs in the direct line may be the subject of
prepared the will. There was a third page, but this only
preterition. Not having been preterited, she will be entitled
contained the notarial acknowledgement. The
only to her legitime.
attestation clause stated the will was sighed on the
same occasion by Arthur and his instrumental
The legacy in favor of Rosa is void under Art. 1028 for being
witnesses who all signed in the presence of each other,
in consideration of her adulterous relation with the testator.
and the notary public who notarized the will. There are
She is, therefore, disqualified to receive the legacy of
no marginal signatures or pagination appearing on any
100,000 pesos. The legacy of 50,000 pesos in favor of Ernie
of the 3 pages. Upon his death, it was discovered that
is not inofficious not having exceeded the free portion.
apart from the house and lot, he has a P1 million
Hence, he shall be entitled to receive it.
account deposited with ABC back.

The institution of Baldo, which applies only to the free

Was the disinheritance valid? (2008 BAR)
portion, shall be respected. In sum, the estate of Lamberto
will be distributed as follows:
A: YES, the disinheritance was valid. When a child or
descendant leads a dishonorable or disgraceful life, like
Baldo ---------------------------- 450,000
running off with a married man, there is sufficient cause for
Wilma -------------------------- 250,000
disinheritance. (Art. 919(7), NCC)
Elvira ----------------------------- 250,000
Ernie----------------------------- 50,000
Q: Mr. Palma, widower, has three daughters D, D-1 and
1,000,000
D-2. He executes a Will disinheriting D because she
married a man he did not like, and instituting daughters
b) REQUISITES FOR THE VARIOUS GROUNDS FOR
D-1 and D-2 as his heirs to his entire estate of P
DISINHERITANCE
1,000,000.00. Upon Mr. Palma's death, how should his
(2019 BAR)
estate be divided? Explain. (2000, 1999 BAR)

Q: Prior to his death, H, married to W. with children X.

A: This is a case of ineffective disinheritance because
Y. and Z, executed a holographic will entirely written,
marrying a man that the father did not approve of is not a
dated, and signed by him. In his will, H instituted W, X,
ground for disinheriting D. Therefore, the institution of D-1
and Y as bis heirs, and consequently, made
and D-2 shall be annulled insofar as it prejudices the
testamentary dispositions in their favor. H. however,
legitime of D, and the institution of D-1 and D- 2 shall only
expressly disinherited Z on the ground that the latter
apply on the free portion in the amount of P500,000.00.
once filed a civil case against him in order to collect a
Therefore, D, D-1 and D-2 will get their legitimes of P500,
particular sum of money he previously owed Z. (2019
000.00 divided into three equal parts and D-1 and D- 2 will
BAR)
get a reduced testamentary disposition of P250,000.00
each. Hence, the shares will be:
(a) Was the disinheritance of Z proper? Explain.

D P166,666.66
D-l P166,666.66 + P250.000.00

U N I V E R S IT Y O F S A N T O T O M A S 112
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
A: NO, it is not a proper ground to disinherit. Art. 916 of the
NCC provides that disinheritance can be effected only
through a will wherein the legal cause therefor shall be
specified. Art. 919 of NCC provides that the following shall
be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate. That Z once
filed a civil case against him in order to collect a particular
sum of money he previously owed is not one of the grounds
for a valid disinheritance.
(b) Assuming that the disinheritance of Z was
improper, how will it affect the institution of
heirs and testamentary dispositions made in
II’s will? Explain.
A: Art. 918 of the NCC provides that disinheritance for a
cause which is not one of those set forth in this Code, shall
annul the institution of heirs insofar as it may prejudice the
person disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as
will not impair the legitime. (UPLC Suggested Answers)
c) EFFECTS OF RECONCILIATION
16. LEGACIES AND DEVISES
(2008, 2007 BAR BAR)
Q: Raymond, single, named his sister Ruffa in his will as
a devisee of a parcel of land which he owned. The will
imposed upon Ruffa the obligation of preserving the
land and transferring it, upon her death, to her
illegitimate daughter Scarlet who was then only one
year old. Raymond later died, leaving behind his
widowed mother, Ruffa and Scarlet. (2008 BAR)
(a) Is the condition imposed upon Ruffa, to
preserve the property and to transmit it upon
her death to Scarlet, valid?
A: YES. When an obligation to preserve and transmit the
property to Scarlet was imposed on Ruffa, the testator
Raymond intended to create a fideicommissary substitution
where Ruffa is the fiduciary and Scarlet is the
fideicommissary. Having complied with the requirements of
Arts. 863 and 869, NCC, the fideicommissary substitution is
valid.
(b) If Scarlet predeceases Ruffa, who inherits the
property?
A: If Scarlet predeceases Ruffa, the fideicommissary
substitution is rendered null or ineffective under Art. 863,
the fideicommissary clause is disregarded without prejudice
to the validity of the institution of the fiduciary. In such case,
Ruffa shall inherit the devise free from the condition.
(c) If Ruffa predeceases Raymond, can Scarlet
inherit the property directly from Raymond?
113
A: NO. In a fideicommissary substitution, the intention of the
testator is to make the second heir his ultimate heir. The
right of the second heir is simply postponed by the delivery
of the inheritance to the first heir for him to enjoy the
usufruct over the inheritance. Hence, when the first heir
predeceased the testator, the first heir did not qualify to
inherit and the right of the second heir to receive the
inheritance will no longer be delayed provided the second
heir is qualified to inherit at the time of the testator’s death.
In fideicommissary substitution, the first and the second
heirs inherit from the testator, hence, both should be
qualified to inherit from the testator at the time of his death.
In the problem, when Ruffa predeceased Raymond, she did
not qualify to receive the inheritance to enjoy its usufruct,
hence, the right of Scarlet to receive the inheritance upon
the death of the testator will no longer be delayed. However,
Scarlet is not qualified to inherit from Raymond because she
is barred by Art. 992 of the NCC being an illegitimate child
of Raymond’s legitimate father. The devise will therefore be
ineffective, and the property will be disposed of by
intestacy.
a) REQUISITES FOR VALIDITY
b) PROPERTY NOT OWNED BY THE TESTATOR
(2007 BAR)
Q: In 1986, Jennifer and Brad were madly in love. In
1989, because a certain Picasso painting reminded
Brad of her, Jennifer acquired it and placed it in his
bedroom. In 1990, Brad and Jennifer broke up. While
Brad was mending his broken heart, he met Angie and
fell in love. Because the Picasso painting reminded
Angie of him, Brad, in his will, bequeathed the painting
to Angie. Brad died in 1995. Saddened by Brad's death,
Jennifer asked for the Picasso painting as a
remembrance of him. Angie refused and claimed that
Brad, in his will, bequeathed the painting to her. Is
Angie correct? Why or why not? (2007 BAR)
A: NO, Angie is not correct. The Picasso painting is not given
or donated by Jennifer to Brad. She merely “placed it in his
bedroom.” Hence, she is still the owner of the painting. Not
being the owner of the Picasso painting, Brad cannot validly
bequeath the same to Angie. (Art. 930, NCC) Even assuming
that the painting was impliedly given or donated by Jennifer
to Brad, the donation is nevertheless void for not being in
writing. The Picasso painting must be worth more than
5,000 pesos. Under Art. 748 of the NCC, the donation and
acceptance of a movable worth more than 5,000 pesos must
be in writing, otherwise the donation is void. Jennifer
remained the owner of the Picasso painting and Brad could
not have validly disposed of said painting in favor of Angie
in his will.
c) INEFFECTIVE LEGACIES/DEVISES
(2017 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
C. INTESTATE SUCCESSION
(2022, 2019, 2018, 2015, 2014, 2013, 2011, 2010,
2009, 2008, 2007, 2006, 2003, 1998, 1997, 1996, 1993
BAR)
1. RELATIONSHIP
(2015, 2014, 2013 BAR)
Q: Bert and Joe, both male and single, lived together as
common law spouses and agreed to raise a son of Bert's
living brother as their child without legally adopting
him. Bert worked while Joe took care of their home and
the boy. In their 20 years of cohabitation they were able
to acquire real estate assets registered in their names
as co-owners. Unfortunately, Bert died of cardiac
arrest, leaving no will. Bert was survived by his
biological siblings, Joe, and the boy.
What are the successional rights of the boy Bert and Joe
raised as their son? (2015 BAR)
A: Neither of the two will inherit from Bert. Joe cannot
inherit because the law does not recognize the right of a
stranger to inherit from the decedent in the absence of a
will. Their cohabitation will not vest Joe with the right to
inherit from Bert. The child will likewise not inherit from
Bert because of the lack of formal adoption of the child. A
mere ward or “ampon” has no right to inherit from the
adopting parents. (Manuel v. Ferrer, G.R. No. 117246, 21 Aug.
1995)
2. CAUSES OF INTESTACY
3. ORDER OF INTESTATE SUCCESSION
Q: D, an Overseas Filipino Worker, was on his way home
to the Philippines after working for so many years in
the Middle East. He had saved ₱100,000.00 in his local
savings account which he intended to use to start up a
business in his home country. On his flight home,
tragedy struck as a suicide bomber blew up the plane.
All the passengers, including D, died. He left behind his
widowed mother M; his common-law wife, W, who is the
mother of his twin sons, T and S; and his brother, B. He
left no will, no debts, no other relatives, and no other
properties except the money in his savings account.
Who are the heirs entitled to inherit from D and how
much should each receive? Explain. (2019 BAR)
A: D’s heirs entitled to inherit from him are:
M (his mother) – P50,000 and T and S (his twin sons) –
P25,000 each.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
D died intestate and his heirs are the mother (legitimate
ascendant) and his twin sons (illegitimate). The mother gets
one-half of his estate and his two illegitimate sons get the
other half. (Art. 991, NCC)
W, the common-law wife, is not an heir ab intestato because
she is not a legal spouse. She is merely a partner in a non-
marital union.
4. RULE OF PROXIMITY AND RULE OF EQUALITY
(2006 BAR)
Q: Don died after executing a Last Will and Testament
leaving his estate valued at P12 Million to his common-
law wife Roshelle. He is survived by his brother Ronie
and his half-sister Michelle. (2006 BAR)
(a) Assuming he died intestate survived by his
brother Ronie, his half-sister Michelle, and his
legitimate son Jayson, how will you distribute his
estate? Explain.
A: Jayson will be entitled to the entire P12 Million as the
brother and sister will be excluded by a legitimate son of the
decedent. This follows the principle of proximity, where
"the nearer excludes the farther."
(b) Assuming further he died intestate, survived by
his father Juan, his brother Ronie, his half-sister
Michelle, and his legitimate son Jayson, how will
you distribute his estate? Explain.
A: Jayson will still be entitled to the entire P12 Million as the
father, brother and sister will be excluded by a legitimate
son of the decedent. (Art. 887, NCC) This follows the
principle that the descendants exclude the ascendants from
inheritance.
a) EXCEPTIONS TO THE RULE OF PROXIMITY AND
RULE OF EQUALITY
5. DETERMINATION OF HEIRS
(2019, 2010, 2009, 2008, 2007, 2006, 1998, 1993 BAR)
Q: The Sps. Peter and Paula had three children. Paula
later obtained a judgment of nullity of marriage. Their
absolute community of property having been dissolved,
they delivered P1 million to each of their three children
as their presumptive legitimes. Peter later re-married
and had two children by his second wife Marie. Peter
and Marie, having successfully engaged in business,
acquired real properties. Peter later died intestate.
(2010 BAR)
(a) Who are Peter’s legal heirs and how will his
estate be divided among them?
A: The legal heirs of Peter are his children by the first and
second marriages and his surviving second wife.
114
 QuAMTO (1987-2022)
Their shares in the estate of Peter will depend, however, on
the cause of the nullity of the first marriage. If the nullity of
the first marriage was psychological incapacity of one or
both spouses, the three children of that void marriage are
legitimate and all of the legal heirs shall share the estate of
Peter in equal shares. If the judgment of nullity was for
other causes, the three children are illegitimate and the
estate shall be distributed such that an illegitimate child of
the first marriage shall receive half of the share of a
legitimate child of the second marriage, and the second wife
will inherit a share equal to that of a legitimate child. In no
case may the two legitimate children of the second marriage
receive a share less than one-half of the estate which is their
legitime. When the estate is not sufficient to pay all the
legitimes of the compulsory heirs, the legitime of the spouse
is preferred and the illegitimate children suffer the
reduction.
Computation:
(A) If the ground of nullity is psychological incapacity:
3 children by first 1/6 of the estate
marriage for each
2 children by second 1/6 of the estate
marriage for each
Surviving second spouse 1/6 of the estate
(B) If the ground of nullity is not psychological capacity:
2 legitimate 1/4 of the estate for each
children of second marriage
Surviving second 1/4 of the estate
spouse
3 illegitimate 1/12 of estate for each of
children first marriage
NOTE: The legitime of an illegitimate child is supposed to
be 1/2 the legitime of a legitimate child or 1/8 of the estate.
But the estate will not be sufficient to pay the said legitime
of the 3 illegitimate children, because only 1/4 of the estate
is left after paying the legitime of the surviving spouse
which is preferred.
Hence, the remaining 1/4 of the estate shall be divided
among the 3 illegitimate children.
(b) What is the effect of the receipt by Peter’s 3
children by his first marriage of their
presumptive legitimes on their right to inherit
following Peter’s death?
A: In the distribution of Peter’s estate, 1/2 of the
presumptive legitime received by the 3 children of the first
marriage shall be collated to Peter’s estate and shall be
imputed as an advance of their respective inheritance from
Peter. Only half of the presumptive legitime is collated to the
estate of Peter because the other half shall be collated to the
estate of his first wife.
115
Q: F had three (3) legitimate children: A, B, and C. B has
one (1) legitimate child X. C has two (2) legitimate
children: Y and Z. F and A rode together in a car and
perished together at the same time in a vehicular
accident, F and A died, each of them leaving substantial
estates in intestacy. (2008, 1998 BAR)
(a) Who are the intestate heirs of F? What are their
respective fractional shares?
A: B = 1/2 ; C= 1/2
(b) Who are the intestate heirs of A? What are their
respective fractional shares?
A: Under Art. 1005, NCC, should brothers and sisters
survive together with nephews and nieces, who are the
children of the decedent’s brothers and sisters of the full
blood, the former shall inherit per capita, and the latter per
stripes. B and C should inherit both ½ of the whole estate.
(c) If B and C both predeceased F, who are F’s
intestate heirs? What are their respective
fractional shares? Do they inherit in their own
right or by representation? Explain your
answer.
A: Under Art. 982, NCC, the grandchildren and other
descendants shall inherit by right of representation, and if
any one of them should have died, leaving several heirs, the
portion pertaining to him shall be divided among the latter
in equal portions. X should inherit 1/2 share by
representation of B. Y and Z should inherit 1/4 share each
by representation of C.
(d) If B and C both repudiated their shares in the
estate of F who are F's intestate heirs? What are
their respective fractional shares? Do they
inherit in their own right or by representation?
Explain your answer.
A: X inherits 1/3 in his own right; Y inherits 1/3 in his own
right; Z inherits 1/3 in his own right; Art. 977 provides that
heirs who repudiate their share cannot be represented.
Q: Ernesto, an overseas Filipino worker, was coming
home to the Philippines after working for so many
years in the Middle East. He has saved P100,000 in his
savings account in Manila which intended to use to start
a business in his home country. On his flight home,
Ernesto has a fatal heart attack. He left behind his
widowed mother, his common-law wife and their twin
sons. He left no will, no debts, no other relatives and no
other properties except the money in his savings
account. Who are the heirs entitled to inherit from him
and how much should each receive? (2008 BAR)
A: The mother and twin sons are entitled to inherit from
Ernesto. If legitimate ascendants are left, the twin sons shall
divide the inheritance with them taking one-half of the
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FACULTY OF CIVI L LAW
 CIVIL LAW
estate. (Art. 991, NCC) Thus, the widowed mother gets
P50,000.00 while the twin sons shall receive P25,000.00
each. The common-law wife cannot inherit from him
because when the law speaks “widow or widower” as a
compulsory heir, the law refers to a legitimate spouse. (Art.
887(3), NCC)
Q: For purpose of this question, assume all formalities
and procedural requirements have been complied
with. In 1970, Ramon and Dessa got married. Prior to
their marriage, Ramon had a child, Anna. In 1971 and
1972, Ramon and Dessa legally adopted Cherry and
Michelle respectively. In 1973, Dessa died while giving
birth to Larry Anna had a child, Lia. Anna never
married. Cherry, on the other hand, legally adopted
Shelly. Larry had twins, Hans and Gretel, with his
girlfriend, Fiona. In 2005, Anna, Larry and Cherry died
in a car accident. In 2007, Ramon died. Who may inherit
from Ramon and who may not? Give your reason
briefly. (2007 BAR)
A: The following may inherit from Ramon:
1. Michelle, as an adopted child of Ramon, will inherit
as a legitimate child of Ramon. As an adopted child,
Michelle has all the rights of a legitimate child. (Sec
18, Domestic Adoption Law)
2. Lia will inherit in representation of Anna. Although
Lia is an illegitimate child, she is not barred by Art.
992, NCC because her mother Anna is an
illegitimate herself. She will represent Anna as
regards Anna's legitime under Art. 902, NCC and as
regards Anna's intestate share under Art. 990, NCC.
The following may not inherit from Ramon:
1. Shelly, being an adopted child, she cannot
represent Cherry. This is because adoption creates
a personal legal relation only between the adopter
and the adopted. The law on representation
requires the representative to be a legal heir of the
person he is representing and also of the person
from whom the person being represented was
supposed to inherit. While Shelly is a legal heir of
Cherry, Shelly is not a legal heir of Ramon. Adoption
created a purely personal legal relation only
between Cherry and Shelly.
2. Hans and Gretel are barred from inheriting from
Ramon under Art. 992, NCC. Being illegitimate
children, they cannot inherit ab intestato from
Ramon.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
ALTERNATIVE ANSWER:
The problem expressly mentioned the dates of the adoption
of Cherry and Michelle as 1971 and 1972. During that time,
adoption was governed by the New Civil Code. Under the
New Civil Code, husband and wife were allowed to adopt
separately or not jointly with the other spouse. And since
the problem does not specifically and categorically state, it
is possible to construe the use of the word "respectively" in
the problem as indicative of the situation that Cherry was
adopted by Ramon alone and Michelle was adopted by
Dessa alone.
In such case of separate adoption the alternative answer to
the problem will be as follows: Only Lia will inherit from
Ramon in representation of Ramon's illegitimate daughter
Anna. Although Lia is an illegitimate child, she is not barred
from inheriting from Ramon because her mother is herself
illegitimate. Shelly cannot inherit in representation of
Cherry because Shelly is just an adopted child of Cherry.
In representation, the representative must not only be a
legal heir of the person he is representing but also of the
decedent from whom the represented person is supposed
to inherit. In the case of Shelly, while she is a legal heir of
Cherry by virtue of adoption, she is not a legal heir of
Ramon.
Adoption creates a personal legal relation only between the
adopting parent and the adopted child. (Teotico v. Del Val,
G.R. No. L-18753, 26 Mar. 1965) Michelle cannot inherit from
Ramon, because she was adopted not by Ramon but by
Dessa. In the eyes of the law, she is not related to Ramon at
all. Hence, she is not a legal heir of Ramon. Hans and Gretel
are not entitled to inherit from Ramon, because they are
barred by Art. 992 NCC. Being illegitimate children of Larry,
they cannot inherit from the legitimate relatives of their
father Larry. Ramon is a legitimate relative of Larry who is
the legitimate father. (UPLC Suggested Answers)
Q: A is the acknowledged natural child of B who died
when A was already 22 years old. When B's full blood
brother, C, died, he (C) was survived by his widow and
four children of his other brother D. Claiming that he is
entitled to inherit from his father's brother C. A brought
suit to obtain his share in the estate of C. Will his action
prosper? (1993 BAR)
A: NO, the action of A will not prosper. On the premise that
B, C and D are legitimate brothers, as an illegitimate child of
B, A cannot inherit in intestacy from C who is a legitimate
brother of B. Only the wife of C in her own right and the
legitimate relatives of C (i.e., the children of D as C's
legitimate nephews inheriting as collateral relatives) can
inherit in intestacy. (Arts. 992, 1001, 1005, 975, NCC)
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 QuAMTO (1987-2022)
6. SUCCESSIONAL BARRIER 2) The three full-blood brothers, will, therefore,
The “Iron Curtain Rule” receive P1,000,000.00 each.
3) The nephew will receive P1,000,000.00 by right of
representation.
Aquino v. Aquino
4) The two half-brothers will receive P500,000.00
G.R. Nos. 208912 and 209018, 07 Dec. 2021
each.

7. SUCCESSIONAL RIGHTS OF ADOPTED CHILDREN (b) If Ramon is survived by his wife, a half-sister,
and three nephews (sons of a deceased full-
8. SUCCESSIONAL RIGHTS OF ADOPTING PARENTS blood brother)? Explain.

A: The wife will receive 1/2 of the estate or P5,000,000.00.

9. SUCCESSIONAL RIGHTS OF MARITAL AND NON- The other half shall be inherited by (1) the full-blood
MARITAL CHILDREN brother, represented by his three children, and (2) the half-
(2022, 2019, 2018, 2009, 2008, 2006, 2003, 1998, sister. They will divide the other half between them such
1997, 1996 BAR) that the share of the half-sister is just half the share of the
full-blood brother. The share of the full-blood brother shall
Q: Joey was the legitimate son of Ron and May. Joey died in turn be inherited by the three nephews in equal shares
intestate and was survived by his wife Kathy and their by right of representation. Therefore, the three nephews
two legitimate children, Luis and Clarisse. Several will receive P1,111,111.10 each the half-sister will receive
months after Joey died, Ron also died intestate. Ron was the sum of P1,666,666.60.
survived by his wife May, daughter Mercy (full-sibling
of Joey), and the children of Joey (Luis and Clarisse). Q: Cristina the illegitimate daughter of Jose and Maria,
Distribute the estate of Ron. Explain briefly. (2022 BAR) died intestate, without any descendant or ascendant.
Her valuable estate is being claimed by Ana, the
A: Under the rules on intestate succession, if a widow or legitimate daughter of Jose, and Eduardo, the legitimate
widower and legitimate children or descendants are left, son of Maria. Is either, both, or neither of them entitled
the surviving spouse has in the succession the same share to inherit? Explain. (1996 BAR)
as that of each of the children. (Art. 996, NCC). Also under
Art. 982, grandchildren and other descendants shall inherit A: Neither Ana nor Eduardo is entitled to inherit of ab
by right of representation. Here, Ron's surviving wife May, intestato from Cristina. Both are legitimate relatives of
his daughter Mercy, and the children of his predeceased son Cristina's illegitimate parents and therefore they fall under
Joey, shall divide the estate in three equal portions. The the prohibition prescribed by Art. 992. (Manuel v. Ferrer,
grandchildren Luis and Clarisse shall inherit by right of G.R. No. 117246, 21 Aug. 1995; Diaz v. IAC, G.R. No. L-66574,
representation and will only get the portion pertaining to 21 Feb. 1990)
Joey. (Central Bar Q&A by Paguirigan, 2023)
Q: Enrique died, leaving a net hereditary estate of P1.2
Q: Ramon Mayaman died intestate, leaving a net estate million. He is survived by his widow, three legitimate
of P10,000,000.00. Determine how much each heir will children, two legitimate grandchildren sired by a
receive from the estate: (2008 BAR) legitimate child who predeceased him, and two
recognized illegitimate children.
(a) If Ramon is survived by his wife, three full-
blood brothers, two half-brothers, and one Distribute the estate in intestacy. (2003, 1998, 1997
nephew (the son of a deceased full-blood BAR)
brother)? Explain.
A: Under the theory of concurrence, the shares are as
A: Having died intestate, the estate of Ramon shall be follows:
inherited by his wife and his full and half-blood siblings or
their respective representatives. In intestacy, if the wife A Legitimate child P200,000
concurs with no one but the siblings of the husband, all of (LC)
them are the intestate heirs of the deceased husband. The B Legitimate child P200,000
wife will receive half of the intestate estate, while the C Legitimate child P200,000
siblings or their respective representatives, will inherit the D Legitimate child P0 (predeceased)
other half to be divided among them equally. If some E Legitimate child P100,000 (by right of
siblings are of the full-blood and the other of the half blood, of D representation)
a half blood sibling will receive half the share of a full-blood F Legitimate child P100,000 (by right of
sibling. of D representation)
G Illegitimate child P100,000 (1/2 share of the LC)
1) The wife of Ramon will, therefore, receive 1/2 of H Illegitimate child P100,000 (1/2 share of the LC)
the estate or the amount of P5,000,000.00.
W Widow P200,000 (same share as LC)

117 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
Q: Luis was survived by two legitimate children, two
illegitimate children, his parents, and two brothers. He
left an estate of P1 million. Luis died intestate.
Who are his intestate heirs, and how much is the share
of each in his estate? (2003 BAR)
A: The intestate heirs are the two (2) legitimate children
and the two (2) illegitimate children. In intestacy the estate
of the decedent is divided among the legitimate and
illegitimate children such that the share of each illegitimate
child is one -half the share of each legitimate child. Their
share are:
For each legitimate child – P333,333.33
For each illegitimate child – P166, 666.66. (Art. 983, NCC;
Art. 176, FC)
10. SUCCESSIONAL RIGHTS OF SURVIVING SPOUSE
Q: Mr. XT and Mrs. YT have been married for 20 years.
Suppose the wife, YT, died childless, survived only by
her husband, XT. What would be the share of XT from
her estate as inheritance? Why? Explain. (2004 BAR)
A: Under the NCC, the widow or widower is a legal and
compulsory heir of the deceased spouse. If the widow is the
only surviving heir, there being no legitimate ascendants,
descendants, brothers, and sisters, nephews and nieces, she
gets the entire estate. (Art. 995, NCC)
Q: Isidro and Irma, Filipinos, both 18 years of age, were
passengers of Flight No. 317 of Oriental Airlines. The
plane they boarded was of Philippine registry. While en
route from Manila to Greece some passengers hijacked
the plane, held the chief pilot hostage at the cockpit and
ordered him to fly instead to Libya. During the hijacking
Isidro suffered a heart attack and was on the verge of
death. Since Irma was already eight months pregnant
by Isidro, she pleaded to the hijackers to allow the
assistant pilot to solemnize her marriage with Isidro.
Soon after the marriage, Isidro expired. As the plane
landed in Libya Irma gave birth. However, the baby died
a few minutes after complete delivery. Back in the
Philippines, Irma Immediately filed a claim for
inheritance.
The parents of Isidro opposed her claim contending
that the marriage between her and Isidro was void ab
initio on the following grounds: (a) they had not given
their consent to the marriage of their son; (b) there was
no marriage license; (c) the solemnizing officer had no
authority to perform the marriage; and, (d) the
solemnizing officer did not file an affidavit of marriage
with the proper civil registrar.
Does Irma have any successional rights at all? Discuss
fully. (1999, 1995 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: YES. Irma succeeded to the estate of Isidro as his
surviving spouse to the estate of her legitimate child. When
Isidro died, he was succeeded by his surviving wife Irma,
and his legitimate unborn child. They divided the estate
equally between them, the child excluding the parents of
Isidro. An unborn child is considered born for all purposes
favorable to it provided it is born later. The child was
considered born because, having an intra-uterine life of
more than seven months, it lived for a few minutes after its
complete delivery. It was legitimate because it was born
within the valid marriage of the parents. Succession is
favorable to it. When the child died, Irma inherited the share
of the child.
ALTERNATIVE ANSWER:
If the marriage is void. Irma has no successional rights with
respect to Isidro but she would have successional rights
with respect to the child. (UPLC Suggested Answers)
11. SUCCESSIONAL RIGHTS OF COLLATERAL
RELATIVES
(2006, 1998 BAR)
Q: Tessie died survived by her husband Mario, and two
nieces, Michelle and Jorelle, who are the legitimate
children of an elder sister who had predeceased her.
The only property she left behind was a house and lot
worth two million pesos, which Tessie and her husband
had acquired with the use of Mario's savings from his
income as a doctor. How much of the property or its
value, if any, may Michelle and Jorelle claim as their
hereditary shares? (1998 BAR)
A: Art. 1001 of the NCC provides, "Should brothers and
sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the
inheritance and the brothers and sisters or their children to
the other half." Tessie's gross estate consists of a house and
lot acquired during her marriage, making it part of the
community property. Thus, one-half of the said property
would have to be set aside as Mario's conjugal share from
the community property. The other half, amounting to one
million pesos, is her conjugal share (net estate), and should
be distributed to her intestate heirs. Applying the above
provision of law, Michelle and Jorelle, Tessie's nieces, are
entitled to one-half of her conjugal share worth one million
pesos, or 500,000 pesos, while the other one-half
amounting to P500,000 will go to Mario, Tessie's surviving
spouse. Michelle and Jorelle are then entitled to P250,000
pesos each as their hereditary share.
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 QuAMTO (1987-2022)
D. PROVISIONS COMMON TO
TESTATE AND INTESTATE SUCCESSION
(2018, 2009, 2005, 2001, 2000, 1999, 1993 BAR)
1. CAPACITY TO SUCCEED
a) INCAPACITY BY REASON OF UNWORTHINESS AND
EFFECTS OF CONDONATION
b) INCAPACITY BY REASON OF MORALITY
c) INCAPACITY BY REASON OF POSSIBLE UNDUE
INFLUENCE
2. RIGHT OF REPRESENTATION IN TESTACY AND
INTESTACY
(2004 BAR)
Q: A Filipino couple, Mr. and Mrs. BM, Jr., decided to
adopt YV, an orphan from St. Claire’s orphanage in New
York City. They loved and treated her like a legitimate
child for they have none of their very own. However,
BM, Jr., died in an accident at sea, followed to the grave
a year later by his sick father, BM, Sr. Each left a sizable
estate consisting of bank deposits, lands, and buildings
in Manila. May the adopted child, YV, inherit from BM,
Jr.? May she also inherit from BM, Sr.? Is there a
difference? Why? Explain. (2004 BAR)
A: YES, YV can inherit from BM, Jr. The succession to the
estate of BM, Jr. is governed by Philippine law because he
was a Filipino when he died. (Art. 16, NCC) Under Art. 1039
of the NCC, the capacity of the heir to succeed is governed
by the national law of the decedent and not by the national
law of the heir. Hence, whether or not YV can inherit from
BM, Jr. is determined by Philippine law. Under Philippine
law, the adopted inherits from the adopter as a legitimate
child of the adopter.
YV, however, cannot inherit, in his own right, from the
father of the adopter, BM, Sr., because he is not a legal heir
of BM, Sr. The legal fiction of adoption exists only between
the adopted and the adopter. (Teotico v. Del Val, G.R. No. L-
18753, 26 Mar. 1965) Neither may he inherit from BM, Sr. by
representing BM, Jr. because in representation, the
representative must be a legal heir not only of the person he
is representing but also of the decedent from whom the
represented was supposed to inherit. (Art. 973, NCC)
a) REQUISITES AND LIMITATIONS
3. RIGHT OF ACCRETION IN TESTAMENTARY
SUCCESSION AND IN INTESTACY
a) REQUISITES AND LIMITATIONS
119
4. ACCEPTANCE AND REPUDIATION OF INHERITANCE
(2011, 2009, 1993 BAR)
a) FORM OF REPUDIATION
b) EFFECTS OF REPUDIATION COMPARED TO
PREDECEASE AND INCAPACITY
(2011, 2009, 1993 BAR)
Q: Four children, namely: Alberto, Baldomero, Caridad,
and Dioscoro, were born to the spouses Conrado and
Clarita de la Costa. The children’s birth certificates
were duly signed by Conrado, showing them to be the
couple’s legitimate children. Later, one Edilberto de la
Cruz executed a notarial document acknowledging
Alberto and Baldomero as his illegitimate children with
Clarita. Edilberto died leaving substantial properties. In
the settlement of his estate, Alberto and Baldomero
intervened claiming shares as the deceased’s
illegitimate children. The legitimate family of Edilberto
opposed the claim.
Are Alberto and Baldomero entitled to share in the
estate of Edilberto? Explain. (2009 BAR)
A: NO, Alberto and Baldomero are not entitled to share in
Edilberto’s estate. They are not related at all to Edilberto.
They were born during the marriage of Conrado and Clarita,
hence, are considered legitimate children of the said
spouses. This status is conferred on them at birth by law.
Under Philippine law, a person cannot have more than one
natural filiation. The legitimate filiation of a person can be
changed only if the legitimate father will successfully
impugn such status.
In the problem, therefore, the filiation of Alberto and
Baldomero as the legitimate children of Conrado cannot be
changed by their recognition by Edilberto as his illegitimate
children. Before they can be conferred the status of
Edilberto’s illegitimate children, Conrado must first impugn
their legitimacy. Since Conrado has not initiated any action
to impugn their legitimacy, they continue to be the
legitimate children of Conrado. They cannot be the
illegitimate children of Edilberto at the same time. Not being
the illegitimate children of Edilberto, they have no right to
inherit from him.
Q: Maria, to spite her husband Jorge, whom she
suspected was having an affair with another woman,
executed a will, unknown to him, bequeathing all the
properties she inherited from her parents to her sister
Miguela. Upon her death, the will was presented for
probate. Jorge opposed probate of the will on the
ground that the will was executed by his wife without
his knowledge, much less consent, and that it deprived
him of his legitime. After all, he had given her no cause
for disinheritance, added Jorge in his opposition.
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 CIVIL LAW
How will you rule on Jorge's opposition to the probate
of Maria's will. If you were the Judge? (1993 BAR)
OBLIGATIONS AND CONTRACTS
A: As Judge, I shall rule as follows: Jorge's opposition should
be sustained in part and denied in part. Jorge's omission as
spouse of Maria is not preterition of a compulsory heir in
the direct line. Hence, Art. 854 of the NCC does not apply, I. OBLIGATIONS
and the institution of Miguela as heir is valid, but only to the
extent of the free portion of one-half. Jorge is still entitled to
one-half of the estate as his legitime. (Art. 1001, NCC)

A. GENERAL PROVISIONS
(2018, 2015, 2012, 2007 BAR)

1. DEFINITION
(2015, 2012 BAR)

Q: It is a conduct that may consist of giving, doing, or not

doing something. (2012 BAR)

A) Obligation
B) Juridical necessity
C) Prestation
D) Contract

A: (C) Prestation

2. ESSENTIAL ELEMENTS
(2012 BAR)

3. SOURCES OF OBLIGATION
(2018, 2012, 2007, 2002, 1997, 1991 BAR)

Q: It is a juridical relation arising from lawful, voluntary

and unilateral acts based on the principle that no one
should unjustly enrich himself at the expense of
another. (2012 BAR)

(a) Quasi-contract
(b) Quasi-delict
(c) Contract
(d) Delict

A: (a) Quasi-contract.

Q: What are obligations without an agreement”? Give

five examples of situations giving rise to this type of
obligation. (2007 BAR)

A: “Obligations without an agreement” refer to the juridical

relation of quasi-contract to the end that no one shall be
unjustly enriched or benefited at the expense of another.
(Art. 2142, NCC)

First example, is a case of negotiorum gestio, whereby one

who voluntarily takes charge of the agency or management
of the business or property of another, without any power

U N I V E R S IT Y O F S A N T O T O M A S 120
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
from the latter, is obliged to continue the same until the thereof.
termination of the affair and its incidents, or to require the
person concerned to substitute him, if the owner is in a A: (b) mistake.
position to do so (Art. 2144, NCC).
Q: This term refers to a delay on the part of both the
Second example, a case of solutio indebiti may also give rise debtor and creditor in reciprocal obligations. (2012
to an obligation without an agreement. This refers to the BAR)
obligation to return which arises when something is
received when there is no right to demand it, and it was (a) Mora accipiendi
unduly delivered through mistake. (Art. 2154, NCC) (b) Mora solvendi
(c) Compensatio morae
Third example, is when without the knowledge of the (d) Solutio indebiti.
person obliged to give support, it is given by a stranger, the
latter shall have a right to claim the same from the former, A: (c) Compensatio morae
unless it appears that he gave it out of piety and without
intention of being repaid. (Art. 2164, NCC) Q: The following are the requisites of mora solvendi,
except: (2012 BAR)
Fourth example, is when through an accident or other cause
a person is injured or becomes seriously ill, and he is treated (a) Obligation pertains to the debtor and is
or helped while he is not in a condition to give consent to a determinate, due, demandable, and liquidated.
contract, he shall be liable to pay for the services of the (b) Obligation was performed on its maturity date.
physician or other person aiding him, unless the service has (c) There is judicial or extrajudicial demand by the
been rendered out or pure generosity. (Art. 2167, NCC) creditor.
(d) Failure of the debtor to comply with such
Fifth instance of an obligation without an agreement is demand.
when the person obliged to support an orphan or an insane
or other indigent person unjustly refuses to give support to A: (b) Obligation was performed on its maturity date.
the latter, any third person may furnish support to the needy
individual, with right of reimbursement from the person Q: It is an intentional evasion of the faithful
obliged to give support. The provisions of this article apply performance of the obligation. (2012 BAR)
when the father or mother of a child under 18 years of age
unjustly refuses to support him. (Art. 2166, NCC) (UPLC (a) Negligence
Suggested Answers) (b) Fraud
(c) Delay
(d) Mistake.
B. NATURE AND EFFECTS OF OBLIGATIONS
(2020-21, 2013, 2012, 2008, 1998, 1996, 1991 BAR) A: (b) Fraud

Q: A seller posted an online advertisement for a “four-

volume set of Tolentino’s Commentaries and
Q: The creditor has the right to the fruits of the thing
Jurisprudence on the Civil Code of the Philippines, 100
from the time: (2012 BAR)
pesos only.” A bar candidate excitedly ordered it and
paid through GCash. However, when the set was
(a) the thing is delivered.
delivered, tears started to well in the Bar candidate’s
(b) the obligation to deliver the things arises.
eyes. Much to the Bar candidate’s bewilderment, the
(c) the contract is perfected.
author was not Arturo Tolentino, the legal luminary as
(d) the fruits are delivered.
the candidate was made to expect, but Lorna Tolentino,
the noted actor. The Bar candidate believes that the
A: (b) the obligation to deliver the things arises.
contract of sale should be rescinded and that damages
are also proper.
1. BREACHES OF OBLIGATIONS
(2020-21, 2013, 2012, 1991 BAR) Is the Bar candidate's position legally sound? Explain
briefly. (2020-21 BAR)
Q: A debtor is liable for damages in case of delay if he is
guilty of any of the following, except: (2012 BAR) A: NO, the Bar candidate’s position is not legally sound.
Rescission or resolution under Art. 1191 of the NCC is a
(a) default (mora) principal remedy in case of breach of a reciprocal obligation.
(b) mistake In the case presented, no breach was committed by the
(c) negligence (culpa) seller by posting an online advertisement for the sale of the
(d) breach through contravention of the tenor four-volume set of Tolentino’s book. It was the Bar

121 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
candidate who assumed that the author of the book was the
legal luminary Arturo Tolentino without any representation
whatsoever from the online seller. The seller complied with
the obligation to deliver the books in accordance with the
order of the Bar candidate. To entitle a party to rescind,
there must be a substantial breach committed by the other
party that goes into the very essence of the contract
between them.
Neither could the claim for rescission be grounded on Art.
1381 because it is not based on lesion or economic
prejudice, or one entered into in fraud of creditors. The
claim for damages is not also sound because to entitle one
to damages, there must be a right of action for a legal wrong
committed against the claimant. It was incumbent upon the
Bar candidate to verify or inquire and not to assume that the
book’s author is the legal luminary. (Bar Q&A by Paguirigan,
2023)
Q: Roland, a basketball star, was under contract for one
year to play-for-play exclusively for Lady Love, Inc.
However, even before the basketball season could
open, he was offered a more attractive pay plus fringes
benefits by Sweet Taste, Inc. Roland accepted the offer
and transferred to Sweet Taste. Lady Love sues Roland
and Sweet Taste for breach of contract. Defendants
claim that the restriction to play for Lady Love alone is
void, hence, unenforceable, as it constitutes an undue
interference with the right of Roland to enter into
contracts and the impairment of his freedom to play
and enjoy basketball.
Can Roland be bound by the contract he entered into
with Lady Love or can he disregard the same? Is he
liable at all? How about Sweet Taste? Is it liable to Lady
Love? (1991 BAR)
A: YES, Roland is liable under the contract as far as Lady
Love is concerned. He is liable for damages under Art. 1170
of the NCC since he contravened the tenor of his obligation.
Not being a contracting party, Sweet Taste is not bound by
the contract, but it can be held liable under Art. 1314, NCC.
The basis of its liability is not prescribed by contract but is
founded on quasi-delict, assuming that Sweet Taste knew of
the contract. Art. 1314 of the NCC provides that any third
person who induces another to violate his contract shall be
liable for damages to the other contracting party.
2. REMEDIES FOR BREACH OF OBLIGATION
(1998, 1996, 1991 BAR)
Q: In a 20-year lease contract over a building, the lessee
is expressly granted a right of first refusal should the
lessor decide to sell both the land and building.
However, the lessor sold the property to a third person
who knew about the lease and in fact agreed to respect
it. Consequently, the lessee brings an action against
both the lessor-seller and the buyer (a) to rescind the
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
sale and (b) to compel specific performance of his right
of first refusal in the sense that the lessor should be
ordered to execute a deed of absolute sale in favor of
the lessee at the same price. The defendants contend
that the plaintiff can neither seek rescission of the sale
nor compel specific performance of a “mere” right of
first refusal. Decide the case. (1998 BAR)
A: The action filed by the lessee, for both rescission of the
offending sale and specific performance of the right of first
refusal which was violated, should prosper. The ruling in
Equatorial Realty Development, Inc. v. Mayfair Theater, Inc.
(G.R. No. 106063, 21 Nov. 1996), a case with similar facts,
sustains both rights of action because the buyer in the
subsequent sale knew the existence of right of first refusal,
hence in bad faith.
Q: In December 1985, Salvador and the Star
Semiconductor Company (SSC) executed a Deed of
Conditional Sale wherein the former agreed to sell his
2,000 square meter lot in Cainta, Rizal, to the latter for
the price of P1,000,000.00, payable P100,000.00 down,
and the balance 60 days after the squatters in the
property have been removed. If the squatters are not
removed within six months, the P100,000.00 down
payment shall be returned by the vendor to the vendee.
Salvador filed ejectment suits against the squatters, but
in spite of the decisions in his favor, the squatters still
would not leave. In August 1986, Salvador offered to
return the P100,000.00 down payment to the vendee,
on the ground that he is unable to remove the squatters
on the property. SSC refused to accept the money and
demands that Salvador executed a deed of absolute sale
of the property in its favor at which time it will pay the
balance of the price. Incidentally, the value of the land
had doubled by that time.
Salvador consigned the P100,000.00 in court, and filed
an action for rescission of the deed of conditional sale,
plus damages. Will the action prosper? Explain. (1996
BAR)
A: NO, the action will not prosper. The action for rescission
may be brought only by the aggrieved party to the contract.
Since it was Salvador who failed to comply with his
conditional obligation, he is not the aggrieved party who
may file the action for rescission but the SSC. The company,
however, is not opting to rescind the contract but has
chosen to waive Salvador’s compliance with the condition
which it can do under Art. 1545, NCC.
Q: In a deed of sale of realty, it was stipulated that the
buyer would construct a commercial building on the lot
while the seller would construct a private passageway
bordering the lot. The building was eventually finished
but the seller failed to complete the passageway as
some of the squatters, who were already known to be
there at the time they entered into the contract, refused
to vacate the premises. In fact, prior to its execution, the
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 QuAMTO (1987-2022)
seller filed ejectment cases against the squatters. The
buyer now sues the seller for specific performance with
damages. The defense is that the obligation to construct
the passageway should be with a period which,
incidentally, had not been fixed by them, hence, the
need for fixing a judicial period.
Will the action for specific performance of the buyer
against the seller prosper? (1991 BAR)
A: NO, the action for specific performance filed by the buyer
is premature under Art. 1197 of the NCC. If a period has not
been fixed although contemplated by the parties, the parties
themselves should fix that period, failing in which, the Court
may be asked to fix it taking into consideration the probable
contemplation of the parties. Before the period is fixed, an
action for specific performance is premature.
C. DIFFERENT KINDS OF OBLIGATIONS
(2017, 2015, 2014, 2013, 2012, 2011, 2009, 2008,
2003, 2001, 2000, 1999, 1998, 1997, 1992 BAR)
Q: Zeny and Nolan were best friends for a long time
already. Zeny borrowed P10,000.00 from Nolan,
evidenced by a promissory note whereby Zeny
promised to pay the loan “once his means permit.” Two
months later, they had a quarrel that broke their long-
standing friendship.
Nolan seeks your advice on how to collect from Zeny
despite the tenor of the promissory note. What will
your advice be? Explain your answer. (2017, 2012 BAR)
A: The remedy of Nolan is to go to court and ask that a
period be fixed for the payment of debt. Art. 1180 of the NCC
provides that when a debtor binds himself to pay when his
means permit him to do so, the obligation shall be deemed
to be one with a period (suspensive). Art. 1197 of the NCC
provides that the courts may fix a period if such was
intended from the nature of the obligation and may also fix
the duration of the period when such depends on the will of
the debtor.
Q: Joey, Jovy and Jojo are solidary debtors under a loan
obligation of P300,000.00 which has fallen due. The
creditor has, however, condoned Jojo's entire share in
the debt. Since Jovy has become insolvent, the creditor
makes a demand on Joey to pay the debt. (2017, 2001,
1998 BAR)
(a) How much, if any, may Joey be compelled to
pay?
A: Joey can be compelled to pay only the remaining balance
of P200.000, in view of the remission of Jojo's share by the
creditor. (Art. 1219, NCC)
123
(b) To what extent, if at all, can Jojo be compelled
by Joey to contribute to such payment?
A: Jojo can be compelled by Joey to contribute P50.000. Art.
1217(3) of the NCC provides. "When one of the solidary
debtors cannot, because of his insolvency, reimburse his
share to the debtor paying the obligation, such share shall
be borne by all his co-debtors, in proportion to the debt of
each."
Since the insolvent debtor's share which Joey paid was
P100,000, and there are only two remaining debtors -
namely Joey and Jojo- these two shall share equally the
burden of reimbursement. Jojo may thus be compelled by
Joey to contribute P50,000.00.
Q: Juancho, Don and Pedro borrowed P150,000.00 from
their friend Cita to put up an internet cafe orally
promising to pay her the full amount after one year.
Because of their lack of business know-how, their
business collapsed. Juancho and Don ended up
penniless, but Pedro was able to borrow money and put
up a restaurant which did well.
Can Cita demand that Pedro pay the entire obligation
since he, together with the two others, promised to pay
the amount in full after one year? Defend your answer.
(2015 BAR)
A: NO, Cita cannot demand that Pedro pay the entire
obligation because the obligation in this case is presumed to
be joint. The concurrence of two or more creditors or of two
or more debtors in one and the same obligation does not
imply that each one of the former has a right to demand, or
that each one of the latter is bound to render, entire
compliance with the prestation. (Art. 1207, NCC) In a joint
obligation, there is no mutual agency among the joint
debtors such that if one of them is insolvent the others shall
not be liable for his share.
Q: A, B, C, D and E made themselves solidarily indebted
to X for the amount of P50,000.00. When X demanded
payment from A, the latter refused to pay on the
following grounds:
a) B is only 16 years old.
b) C has already been condoned by X.
c) D is insolvent.
d) E was given by X an extension of 6 months
without the consent of the other four co-
debtors.
State the effect of each of the above defenses put up by
A on his obligation to pay X, if such defenses are found
to be true. (2003 BAR)
(a) B is only 16 years old.
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 CIVIL LAW
A: A may avail the minority of B as a defense, but only for
B’s share of P 10,000.00. A solidary debtor may avail himself
of any defense which personally belongs to a solidary co-
debtor, but only as to the share of that co-debtor.
(b) C has already been condoned by X.
A: A may avail of the condonation by X of C’s share of P
10,000.00. A solidary debtor may, in actions filed by the
creditor, avail himself of all defenses which are derived
from the nature of the obligation and of those which are
personal to him or pertain to his own share. With respect to
those which personally belong to others, he may avail
himself thereof only as regards that part of the debt for
which the latter are responsible. (Art. 1222, NCC)
(c) D is insolvent.
A: A may not interpose the defense of insolvency of D as a
defense. Applying the principle of mutual guaranty among
solidary debtors, A guaranteed the payment of D’s share and
of all the other co-debtors. Hence, A cannot avail of the
defense of D’s insolvency.
(d) E was given by X an extension of 6 months
without the consent of the other four co-
debtors.
A: The extension of six (6) months given by X to E may be
availed of by A as a partial defense but only for the share of
E, there is no novation of the obligation but only an act of
liberality granted to E alone.
Q: Are the following obligations valid, why, and if they
are valid, when is the obligation demandable in each
case? (2003 BAR)
(a) If the debtor promises to pay as soon as he has
the means to pay;
A: YES, The obligation is valid. It is an obligation subject to
an indefinite period because the debtor binds himself to pay
when his means permit him to do so. (Art. 1180, NCC)
When the creditor knows that the debtor already has the
means to pay, he must file an action in court to fix the
period, and when the definite period as set by the court
arrives, the obligation to pay becomes demandable. (Art.
1197, NCC)
(b) If the debtor promises to pay when he likes;
A: NO. The obligation to pay when he likes is a suspensive
condition the fulfillment of which is subject to the sole will
of the debtor and therefore the conditional obligation is
void. (Art. 1182, NCC)
(c) If the debtor promises to pay when he becomes
a lawyer; and
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: YES, the obligation is valid. It is subject to a suspensive
condition, i.e., the future and uncertain event of his
becoming a lawyer. The performance of this obligation does
not depend solely on the will of the debtor but also on other
factors outside the debtor’s control.
(d) If the debtor promises to pay if his son, who is
sick with cancer, does not die within one year.
A: YES, the obligation is valid. The death of the son of cancer
within one year is made a negative suspensive condition to
his making the payment. The obligation is demandable if the
son does not die within one year. (Art. 1185, NCC)
Q: Four foreign medical students rented the apartment
of Thelma for a period of one year. After one semester,
three of them returned to their home country and the
fourth transferred to a boarding house. Thelma
discovered that they left unpaid telephone bills in the
total amount of P80,000.00. The lease contract
provided that the lessees shall pay for the telephone
services in the leased premises. Thelma demanded that
the fourth student pay the entire amount of the unpaid
telephone bills, but the latter is willing to pay only one
fourth of it.
Who is correct? Why? (2001 BAR)
A: The fourth student is correct. His liability is only joint,
hence, pro rata. There is solidary liability only when the
obligation expressly so states or when the law or nature of
the obligation requires solidarity. (Art. 1207, NCC) The
contract of lease in the problem does not, in any way,
stipulate solidarity.
Q: Pedro promised to give his grandson a car if the
latter will pass the bar examinations. When his
grandson passed the said examinations, Pedro refused
to give the car on the ground that the condition was a
purely potestative one. Is he correct or not? (2000 BAR)
A: NO, he is not correct. First of all, the condition is not
purely potestative, because it does not depend on the sole
will of one of the parties. Secondly, even if it were, it would
be valid because it depends on the sole will of the creditor
(the donee) and not of the debtor (the donor).
Q: In 1997, Manuel bound himself to sell Eva a house
and lot which is being rented by another person, if Eva
passes the 1998 bar examinations. Luckily for Eva, she
passed said examinations. (1999 BAR)
(a) Suppose Manuel had sold the same house and
lot to another before Eva passed the 1998 bar
examinations, is such sale valid? Why?
A: YES, the sale to the other person is valid. However, the
buyer acquired the property subject to a resolutory
condition of Eva passing the 1998 Bar Examinations. Hence,
upon Eva's passing the Bar, the rights of the other buyer
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 QuAMTO (1987-2022)
terminated, and Eva acquired ownership of the property.
ALTERNATIVE ANSWER:
YES, the sale to the other person is valid, as the contract
between Manuel and Eva is a mere promise to sell and Eva
has not acquired a real right over the land assuming that
there is a price stipulated in the contract for the contract to
be considered a sale and there was delivery or tradition of
the thing sold.
(b) Assuming that it is Eva who is entitled to buy
said house and lot, is she entitled to the rentals
collected by Manuel before she passed the 1998
bar examinations? Why?
A: NO, she is not entitled to the rentals collected by Manuel
because at the time they accrued and were collected, Eva
was not yet the owner of the property.
Q: In two separate documents signed by him, Juan
Valentino "obligated" himself each to Maria and to
Perla, thus –
'To Maria, my true love, I obligate myself to give you my
one and only horse when I feel like It."
- and –
'To Perla, my true sweetheart, I obligate myself to pay
you the P500.00 I owe you when I feel like it."
Months passed but Juan never bothered to make good
his promises. Maria and Perla came to consult you on
whether or not they could recover on the basis of the
foregoing settings. What would your legal advice be?
(1997 BAR)
A: I would advise Maria not to bother running after Juan for
the latter to make good his promise. This is because a
promise is not an actionable wrong that allows a party to
recover especially when she has not suffered damages
resulting from such promise. A promise does not create an
obligation on the part of Juan because it is not something
which arises from a contract, law, quasi-contracts or quasi-
delicts. (Art, 1157, NCC) Under Art. 1182, NCC, Juan's
promise to Maria is void because a conditional obligation
depends upon the sole will of the obligor. As regards Perla,
the document is an express acknowledgment of a debt, and
the promise to pay what he owes her when he feels like it is
equivalent to a promise to pay when his means permits him
to do so, and is deemed to be one with an indefinite period
under Art. 1180, NCC. Hence the amount is recoverable after
Perla asks the court to set the period as provided by Art.
1197(2), NCC.
Q: In June 1988, X obtained a loan from A and executed
with Y as solidary co-maker a promissory note in favor
of A for the sum of P200,000.00. The loan was payable
at P20,000.00 with interest monthly within the first
week of each month beginning July 1988 until maturity
in April 1989. To secure the payment of the loan, X put
125
up as security a chattel mortgage on his car, a Toyota
Corolla sedan. Because of failure of X and Y to pay the
principal amount of the loan, the car was extrajudicially
foreclosed. A acquired the car at A’s highest bid of
P120,000.00 during the auction sale. After several
fruitless letters of demand against X and Y, A sued Y for
the discovery of P80,000.00 constituting the deficiency.
Y resisted the suit raising the following defenses:
Decide the defense with reasons. (1992 BAR)
(a) That Y should not be liable at all because X was
not sued together with Y.
A: The first defense of Y is untenable. Y is still liable as
solidary debtor. The creditor may proceed against any one
of the solidary debtors. The demand against one does not
preclude further demand against the others so long as the
debt is not fully paid.
(b) That the obligation has been paid completely by
A’s acquisition of the car through “dacion en
pago” or payment by cession.
A: The second defense of Y is untenable. Y is still liable. The
chattel mortgage is only given as security and not as
payment for the debt in case of failure to pay. Y as a solidary
co-maker is not relieved of further liability on the
promissory note as a result of the foreclosure of the chattel
mortgage.
(c) That Y should not be held liable for the
deficiency of P80,000.00 because he was not a
co-mortgagor in the chattel mortgage of the car,
which contract was executed by X alone as
owner and mortgagor.
A: The third defense of Y is untenable. Y is a surety of X and
the extrajudicial demand against the principal debtor is not
inconsistent with a judicial demand against the surety. A
suretyship may co-exist with a mortgage.
(d) That assuming he is liable, he should only pay
the proportionate sum of P40,000.00.
A: The fourth defense is untenable. Y is liable for the entire
prestation since Y incurred a solidary obligation with X.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
D. EXTINGUISHMENT OF OBLIGATIONS
(2022, 2019, 2018, 2016, 2015, 2014, 2013, 2012,
2011, 2009, 2008, 2007, 2002, 2001, 2000, 1998, 1996,
1994 BAR)
1. PAYMENT
(2018, 2016, 2013, 2012, 2011, 2009, 1998 BAR)
a) CONCEPT OF PAYMENT
(2018, 2013, 1998 BAR)
Q: Gary is a tobacco trader and also a lending investor.
He sold tobacco leaves to Homer for delivery within a
month, although the period for delivery was not
guaranteed. Despite Gary's efforts to deliver on time,
transportation problems and government red tape
hindered his efforts and he could only deliver after 30
days. Homer refused to accept the late delivery and to
pay on the ground that the agreed term had not been
complied with.
As lending investor, Gary granted a P1,000,000 loan to
Isaac to be paid within two years from execution of the
contract. As security for the loan, Isaac promised to
deliver to Gary his Toyota Innova within seven (7) days,
but Isaac failed to do so. Gary was thus compelled to
demand payment for the loan before the end of the
agreed two-year term. (2013 BAR)
1. Was Homer justified in refusing to accept the tobacco
leaves?
(A) Yes. Homer was justified in refusing to accept
the tobacco leaves. The delivery was to be made
within a month. Gary's promise of delivery on a
"best effort" basis made the delivery uncertain.
The term, therefore, was ambiguous.
(B) No. Homer was not justified in refusing to
accept the tobacco leaves. He consented to the
terms and conditions of the sale and must abide
by it. Obligations arising from contract have the
force of law between the contracting parties.
(C) Yes. Homer was justified in his refusal to accept
the delivery. The contract contemplates an
obligation with a term. Since the delivery was
made after 30 days, contrary to the terms
agreed upon, Gary could not insist that Homer
accept the tobacco leaves.
(D) No. Homer was not justified in refusing to
accept the tobacco leaves. There was no term in
the contract but a mixed condition. The
fulfillment of the condition did not depend
purely on Gary's will but on other factors, e.g.,
the shipping company and the government.
Homer should comply with his obligation.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: (B) (obligations arising from contracts have the force of
law) or (D) (the obligation is not with the term but with a
mixed condition – although the facts are not clear enough if
it was stated in the contract that the other factors like
transportation or government regulations would be a
factor)
2. Can Gary compel Isaac to pay his loan even before the
end of the two-year period?
(A) Yes, Gary can compel Isaac to immediately pay
the loan. Non-compliance with the promised
guaranty or security renders the obligation
immediately demandable. Isaac lost his right to
make use of the period.
(B) Yes, Gary can compel Isaac to immediately pay
the loan. The delivery of the Toyota Innova is a
condition for the loan. Isaac's failure to deliver
the car violated the condition upon which the
loan was granted. It is but fair for Gary to
demand immediate payment.
(C) No, Gary cannot compel Isaac to immediately
pay the loan. The delivery of the car as security
for the loan is an accessory contract; the
principal contract is still the P 1,000,000 loan.
Thus, Isaac can still make use of the period.
(D) No, Gary cannot compel Isaac to immediately
pay the loan. Equity dictates that Gary should
have granted a reasonable extension of time for
Isaac to deliver his Toyota Innova. It would be
unfair and burdensome for Isaac to pay the
P1,000,000 simply because the promised
security was not delivered.
A: (A) - Art. 1198, NCC. Isaac lost his right to make use of
the period because he failed to furnish the guaranty or
security in consideration of which Gary agreed to the
period.
Q: Samantha sold all her business interest in a sole
proprietorship to Sergio for the amount of Php 1
million. Under the sale agreement, Samantha was
supposed to pay for all prior unpaid utility bills
incurred by the sole proprietorship. A month after the
Contract to Sell was executed, Samantha still had not
paid the PhP50,000 electricity bills incurred prior to
the sale. Since Sergio could not operate the business
without electricity and the utility company refused to
restore electricity services unless the unpaid bills were
settled in full, Sergio had to pay the unpaid electricity
bills. When the date for payment arrived, Sergio only
tendered Php 950,000 representing the full purchase
price, less the amount he paid for the unpaid utility
bills. Samantha refused to accept the tender on the
ground that she was the one supposed to pay the bills
and Sergio did not have authorization to pay on her
behalf. (2018 BAR)
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 QuAMTO (1987-2022)
(a) What is the effect of payment made by Sergio
without the knowledge and consent of
Samantha.
A: The payment by Sergio resulted in the extinguishment of
the obligation of Samantha to the utility company and
Sergio was legal subrogated to the utility company’s credit.
Sergio, thus, became Samantha’s new creditor. Under Art.
1302(3), NCC, it is presumed that there is legal subrogation
when, even without the knowledge of the debtor, a person
interested in the fulfillment of the obligation pays, without
prejudice to the effects of confusion as to the latter's share.
A person interested in the fulfillment is one who will benefit
from the extinguishment of the obligation. Here, Sergio is an
interested person since he was the business successor-in-
interest of the Samantha and he cannot conduct his business
without paying the debtor of Samantha. Since there is legal
subrogation, Sergio stepped into the shoes of the utility
company as the new creditor to the P50,000 credit; thus,
there can be valid legal compensation of the two credits
between him and Samantha who are principally debtors
and creditors of each other up to the concurrent amount of
P50,000. (Art. 1279, NCC)
(b) Is Samantha guilty of mora accipiendi?
A: YES, Samantha is guilty of mora accipiendi. The requisites
for mora accipiendi are: (i) offer of performance by the
debtor; (ii) offer must be to comply with prestation as it
should be performed; and (iii) the creditor refuses to accept
the performance without just cause. Here, Sergio validly
made an offer to comply with the prestation of payment,
albeit for P950,000 only. Sergio’s offer is justified based on
the concept of partial legal compensation up to the amount
of P50,000, since Sergio and Samantha are in their own right
principal debtors and creditors of each other. Samantha’s
refusal was without just cause as she cannot be permitted
to benefit or use as a defense her own failure to fulfill her
part of the obligation to pay the electricity bills.
b) PAYMENT BY CESSION vs. DATION IN PAYMENT
(2016, 2009 BAR)
Q: True or False. The renunciation by a co-owner of his
undivided share in the co-owned property in lieu of the
performance of his obligation to contribute to taxes and
expenses for the preservation of the property
constitutes dacion en pago. (2009 BAR)
A: TRUE. Under the NCC, a co-owner may renounce his
share in the co-owned property in lieu of paying for his
share in the taxes and expenses for the preservation of the
co-owned property. In effect, there is dacion en pago
because the co-owner is discharging his monetary
obligation by paying it with his non-monetary interest in
the co-owned property. The fact that he is giving up his
entire interest simply means that he is accepting the value
of his interest as equivalent to his share in the taxes and
expenses of preservation.
127
Q: Butch got a loan from Hagibis Corporation (Hagibis)
but he defaulted in the payment. A case for collection of
a sum of money was filed against him. As a defense,
Butch claims that there was already an arrangement
with Hagibis on the payment of the loan. To implement
the same, Butch already surrendered 5 service utility
vehicles (SUVs) to the company for it to sell and the
proceeds to be credited to the loan as payment. Was the
obligation of Butch extinguished by reason of dacion en
pago upon the surrender of the SUVs? Decide and
explain. (2016 BAR)
A: NO, the obligation of Butch to Hagibis was not
extinguished by the mere surrender of the SUV’s to the
latter. Dation in payment, whereby property is alienated to
the creditor in satisfaction of a debt in money, shall be
governed by the law on sales. (Art. 1245, NCC) In dacion en
pago, as a special mode of payment, the debtor offers
another thing to the creditor who accepts it as equivalent of
payment of an outstanding debt. The undertaking really
partakes in one sense of the nature of sale, that is, the
creditor is really buying the thing or property of the debtor,
payment for which is to be charged against the debtor’s
debt. As such, the essential elements of a contract of sale,
namely, consent, object certain, and cause or consideration
must be present. In dacion en pago, there is in reality an
objective novation of the obligation where the thing offered
as an accepted equivalent of the performance of an
obligation is considered as the object of the contract of sale,
while the debt is considered as the purchase price. In any
case, common consent is an essential pre-requisite, be it
sale or innovation to have the effect of totally extinguishing
the debt or obligation. (Filinvest Credit Corporation v.
Philippine Acetylene Company, G.R. No. L-50449, 30 Jan.
1982) There being no mention in the facts that Hagibis has
given its consent to accept the SUCs as equivalent payment,
the obligation of Butch is not thereby extinguished be mere
delivery of the SUVs.
c) TENDER OF PAYMENT AND CONSIGNATION
(2011 BAR)
A: Allan bought Billy’s property through Carlos, an
agent empowered with a special power of attorney
(SPA) to sell the same. When Allan was ready to pay as
scheduled, Billy called, directing Allan to pay directly to
him. On learning of this, Carlos, Billy's agent, told Allan
to pay through him as his SPA provided and to protect
his commission. Faced with two claimants, Allan
consigned the payment in court. Billy protested,
contending that the consignation is ineffective since no
tender of payment was made to him. Is he correct?
(2011 BAR)
(A) No, since consignation without tender of
payment is allowed in the face of the conflicting
claims on the plaintiff.
(B) Yes, as owner of the property sold, Billy can
demand payment directly to himself.
(C) Yes, since Allan made no announcement of the
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 CIVIL LAW
tender. A: NO, I do not agree with the contention of X. The law
(D) Yes, a tender of payment is required for a valid provides that except when it is otherwise declared by
consignation. stipulation or when the law provides or the nature of the
obligation requires the assumption of risk, no person shall
A: (A) NO, since consignation without tender of payment is be liable for those events which could not be foreseen or
allowed in the face of the conflicting claims on the plaintiff. which though foreseen were inevitable. (Art. 1174, NCC) In
the case presented, X cannot invoke fortuitous event as a
2. LOSS OF THE THING DUE defense because she had already incurred in delay at the
(2015, 2012, 2008, 2002 BAR) time of the occurrence of the loss. (Art. 1165, NCC)

Q: AB Corp. entered into a contract with XY Corp.

a) CONCEPT OF LOSS
whereby the former agreed to construct the research
and laboratory facilities of the latter. Under the terms
b) REQUISITES
of the contract, AB Corp. agreed to complete the facility
(2012 BAR)
in 18 months, at the total contract price of P10 million.
XY Corp. paid 50% of the total contract price, the
Q: The following are the requisites of fortuitous event,
balance to be paid upon completion of the work. The
except: (2012 BAR)
work started immediately, but AB Corp. later
experienced work slippage because of labor unrest in
(a) Cause is independent of the will of the debtor.
his company. AB Corp.’s employees claimed that they
(b) The event is unforeseeable/unavoidable.
are not being paid on time; hence, the work slowdown.
(c) Occurrence renders it absolutely impossible for
As of the 17th month, work was only 45% completed.
the debtor to fulfill his obligation in a normal
AB Corp. asked for extension of time, claiming that its
manner; impossibility must be absolute not
labor problems is a case of fortuitous event, but this
partial, otherwise not force majeure.
was denied by XY Corp. When it became certain that the
(d) Debtor contributed to the aggravation of the
construction could not be finished on time, XY Corp.
injury to the creditor.
sent written notice canceling the contract, and
requiring AB Corp. to immediately vacate the premises.
A: (d) Debtor contributed to the aggravation of the injury to
(2008 BAR)
the creditor. (UPLC Suggested Answers)

a) Can the labor unrest be considered a fortuitous

c) FORCE MAJEURE
event?
(2015, 2012, 2008, 2002 BAR)

A: NO, Labor unrest is not a fortuitous event that will excuse

Q: A debtor may still be held liable for loss or damages
AB Corp. from complying with its obligation of constructing
even if it was caused by a fortuitous event in any of the
the research and laboratory facilities of XY Corporation. The
following instances, except: (2012 BAR)
labor unrest, which may even be attributed in large part to
AB Corporation itself, is not the direct cause of non-
(a) The debtor is guilty of dolo, malice or bad faith,
compliance by AB Corporation. It is independent of its
has promised the same thing to two or more
obligation. It is similar to the failure of a DBP borrower to
persons who do not have the same interest.
pay her loan just because her plantation suffered losses due
(b) The debtor contributed to the loss.
to the cadang-cadang disease. It does not excuse compliance
(c) The thing to be delivered is generic.
with the obligation. (DBP v. Vda. de Moll, G.R. No. L- 25802,
(d) The creditor is guilty of fraud, negligence or
31 Jan. 1972)
delay or if he contravened the tenor of the
obligation.
ADDITIONAL ANSWER:

A: (c) The thing to be delivered is generic.

The labor unrest in this case is not a fortuitous event. The
requisites of fortuitous event are:
Q: X, a dressmaker, accepted clothing materials from
Karla to make two dresses for her day. On the X was
(1) the event must be independent of human will or at least
supposed to deliver Karla's dresses, X called up Karla to
of the debtor’s will; (2) the event could not be foreseen, or
say that she had an urgent matter to attend to and will
if foreseen, is inevitable; (3) the event must have rendered
deliver them the next day. That night, however, a
impossible debtor’s compliance of the obligation in a proper
robber broke into her shop and took everything
manner; and (4) the debtor must not be guilty of concurrent
including Karla's two dresses. X claims she is not liable
negligence (Lasam v Smith, 45 Phils. 657 [1924]). All the
to deliver Karla's dresses or to pay for the clothing
requisites are absent in this case. AB Corp. could have
materials considering she herself was a victim of the
anticipated the labor unrest which was caused by delays in
robbery which was a fortuitous event and over which
paying the laborer’s wages. The company could have hired
she had no control. Do you agree? Why? (2015 BAR)
additional laborers to make up for the work slowdown.

U N I V E R S IT Y O F S A N T O T O M A S 128
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
b) Must AB Corp. return the 50% down payment?
A: NO, under the principle of quantum meruit, AC Corp. has
the right to retain payment corresponding to his percentage
of accomplishment less the amount of damages suffered by
XY Corp. because of the delay or default.
Q: A van owned by Orlando and driven by Diego, while
negotiating a downhill slope of a city road, suddenly
gained speed, obviously beyond the authorized limit in
the area, and bumped a car in front of it, causing severe
damage to the care and serious injuries to its
passengers. Orlando was not in the car at the time of the
incident. The car owner and the injured passengers
sued Orlando and Diego for damages caused by Diego’s
negligence. In their defense, Diego claims that the
downhill slope caused the van to gain speed and that, as
he stepped on the brakes to check the acceleration, the
brakes locked, causing the van to go even faster and
eventually to hit the car in front of it. Orlando and Diego
contend that the sudden malfunction of the van’s brake
system is a fortuitous even and that, therefore, they are
exempt from any liability.
Is this contention tenable? Explain. (2002 BAR)
A: NO. Mechanical defects of a motor vehicle do not
constitute fortuitous event, since the presence of such
defects would have been readily detected by diligent
maintenance check. The failure to maintain the vehicle in
safe running condition constitutes negligence.
3. CONDONATION
(2000 BAR)
Q: Arturo borrowed P500,000.00 from his father. After
he had paid P300,000.00, his father died. When the
administrator of his father's estate requested payment
of the balance of P200,000.00. Arturo replied that the
same had been condoned by his father as evidenced by
a notation at the back of his check payment for the
P300,000.00 reading: “In full payment of the loan.” Will
this be a valid defense in an action for collection? (2000
BAR)
A: It depends. If the notation "in full payment of the loan"
was written by Arturo's father, there was an implied
condonation of the balance that discharges the obligation.
In such case, the notation is an act of the father from which
condonation may be inferred. The condonation being
implied, it need not comply with the formalities of a
donation to be effective. The defense of full payment will,
therefore, be valid. When, however, the notation was
written by Arturo himself. It merely proves his intention in
making that payment but in no way does it bind his father.
(Yam v. Court of Appeals, G.R No. 104726, 11 Feb. 1999) In
such case, the notation was not the act of his father from
which condonation may be inferred. There being no
condonation at all, the defense of full payment will not be
valid.
129
4. CONFUSION
5. COMPENSATION
(2019, 2012, 2009, 2008, 2002, 1998 BAR)
Q: Define compensation as a mode of extinguishing an
obligation and distinguish it from payment. (1998 BAR)
A: Compensation is a mode of extinguishing to the
concurrent amount, the obligations of those persons who in
their own right are reciprocally debtors and creditors of
each other. (Tolentino, 1991, p. 365, citing 2 Castan 560 and
Francia v. Intermediate Appellate Court, G.R. No. L-67649, 28
June 1988) It involves the simultaneous balancing of two
obligations in order to extinguish them to the extent in
which the amount of one is covered by that of the other. (De
Leon, 1992, p. 221, citing 8 Manresa 401)
Payment means not only delivery of money but also
performance of an obligation. (Art. 1232, NCC) In payment,
capacity to dispose of the thing paid and capacity to receive
payment are required for debtor and creditor, respectively:
in compensation, such capacity is not necessary, because
the compensation operates by law and not by the act of the
parties. In payment, the performance must be complete,
while in compensation there may be partial extinguishment
of an obligation. (Tolentino, supra)
Q: In light of a new business venture, Mr. A entered into
a lease contract with Mr. B involving one of the latter's
warehouses. One day, Mr. B, who was then
encountering financial difficulties, approached Mr. A
and sought for a loan, which Mr. A readily granted to
him. In order to secure the loan obligation, Mr. B
mortgaged the leased warehouse in favor of Mr. A. In
addition, Mr. B executed a promissory note in favor of
A, wherein prior demand was waived by him.
When Mr. B defaulted on his loan obligation, Mr. A
simply stopped paying rentals due to Mr. B on the
ground that legal compensation had already set in up to
the concurrent amount. Furthermore, since there was
still a balance due on the promissory note, Mr. A
foreclosed the real estate mortgage over Mr. B's
property, without any prior demand furnished to Mr. B.
Aggrieved, Mr. B opposed the foreclosure due to the
lack of prior demand, contending that the waiver of
prior demand was stipulated in the promissory note
and not in the mortgage instrument. Mr. B likewise
argued that when Mr. A invoked legal compensation
between the unpaid rentals and the loan arrearages, it
amounted to a novation that resulted in the
extinguishment of the loan contract between them. As
such, the real estate mortgage, being a mere accessory
contract to the principal loan, was necessarily
extinguished. (2019 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
a. May Mr. A validly claim legal compensation?
Explain.
A: YES, A may validly claim partial legal compensation
against B with respect to the unpaid rentals and the sum due
from B under the promissory note. The law provides that
when all the requisites for legal compensation are present,
it takes place by operation of law and extinguishes both
debts to the concurrent amount, even if the creditor and
debtor are not aware of the compensation. (Arts 1279 &
1290, NCC) Here, A and B are mutual creditor and debtor of
each other; both debts consists in the payment of money;
both debts are due, liquidated and demandable; and there
is no retention or controversy commenced by third persons
and communicated in due time to either A or B. Thus, all the
requisites of legal compensation are present. (Central Bar
Q&A by Paguirigan, 2023)
b. May Mr. A validly foreclose on the real estate
mortgage even without prior demand to Mr. B?
Explain.
A: YES, A may validly foreclose without the need of prior
demand. The general rule is that there must be a demand to
put the debtor in default. However, one of the recognized
exceptions to the necessity of demand before default may
set in is if the obligation or law expressly so states that
demand is not necessary. (Art. 1169, NCC) Based on the
promissory note executed by B, he expressly waived need
of demand. Thus, when B failed to pay the amounts due
under the note, A has the right to foreclose the mortgage
without prior demand. (Cabanting v. BPI, G.R. No. 201927, 17
Feb. 2016) (Central Bar Q&A by Paguirigan, 2023)
c. Is Mr. B's claim of novation correct? Explain.
A: NO, B's claim of novation is not correct. Novation
requires the following requisites: (1) a previous valid
obligation; (2) the agreement of all the parties to the new
contract; (3) the extinguishment of the old contract; and (4)
validity of the new one. There must be consent of all the
parties to the substitution, resulting in the extinction of the
old obligation and the creation of a valid new one. (CCC
Insurance Corporation vs. Kawasaki Steel Corporation and
Manacop, G.R. No. 156162, 22 June 2015) There was no new
contract entered into between A and B which precludes the
occurrence of novation. Instead, what occurred here is
partial compensation. (Central Bar Q&A by Paguirigan,
2023)
Q: Sarah had a deposit in a savings account with Filipino
Universal Bank in the amount of P5,000,000.00. To buy
a new car, she obtained a loan from the same bank in
the amount of P1,200,000.00, payable in 12 monthly
installments. Sarah issued in favor of the bank post-
dated checks, each in the amount of P100,000.00, to
cover the 12 monthly installment payments. On the
third, fourth and fifth months, the corresponding
checks bounced.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
The bank then declared the whole obligation due, and
proceeded to deduct the amount of P1,000,000.00 from
Sarah’s deposit after notice to her that this is a form of
compensation allowed by law. Is the bank correct?
Explain. (2009 BAR)
A: NO, the bank is not correct. While the Bank is correct
about the applicability of compensation, it was not correct
as to the amount compensated. A bank deposit is a contract
of loan, where the depositor is the creditor and the bank the
debtor. Since Sarah is also the debtor of the bank with
respect to the loan, both are mutually principal debtors and
creditors of each other. Both obligations are due,
demandable and liquidated but only up to the extent of
P300,000.00 (covering the unpaid third, fourth and fifth
monthly installments). The entire 1 million was not yet due
because the loan has no acceleration clause in case of
default. And since there is no retention or controversy
commenced by third person and communicated in due time
to the debtor, then all the requisites of legal compensation
are present but only up to the amount of P300,000.00. The
bank, therefore, may deduct P300,000.00 from Sarah’s bank
deposit by way of compensation.
Q: Stockton is a stockholder of Core Corp. He desires to
sell his shares in Core Corp. In view of a court suit that
Core Corp. has filed against him for damages in the
amount of P10 million, plus attorney’s fees of P1
million, as a result of statements published by Stockton
which are allegedly defamatory because it was
calculated to injure and damage the corporation’s
reputation and goodwill. The articles of incorporation
of Core Corp. provide for a right of first refusal in favor
of the corporation. Accordingly, Stockton gave written
notice to the corporation of his offer to sell his shares of
P10 million. The response of Core corp. was an
acceptance of the offer in the exercise of its rights of
first refusal, offering for the purpose payment in form
of compensation or set-off against the amount of
damages it is claiming against him, exclusive of the
claim for attorney’s fees. Stockton rejected the offer of
the corporation, arguing that compensation between
the value of the shares and the amount of damages
demanded by the corporation cannot legally take effect.
Is Stockton correct? Give reason for your answer.
(2002, 1998 BAR)
A: Stockton is correct. There is no right of compensation
between his price of P10 million and Core Corp.’s
unliquidated claim for damages. In order that compensation
may be proper, the two debts must be liquidated and
demandable. The case for the P10 million damages being
still pending in court, the corporation has as yet no claim
which is due and demandable against Stockton.
130
 QuAMTO (1987-2022)
Q: X, who has a savings deposit with Y Bank in the sum 6. NOVATION
of P1,000,000.00, incurs a loan obligation with the said (2022, 2016, 2014, 2008, 2001, 1996, 1994 BAR)
Bank in the sum of P800,000.00 which has become due.
When X tries to withdraw his deposit, Y Bank allows
a) CONCEPT OF NOVATION
only P200,000.00 to be withdrawn, less service charges,
claiming that compensation has extinguished its
b) EXPRESSED AND IMPLIED NOVATION
obligation under the savings account to the concurrent
(2016, 1994 BAR)
amount of X’s debt. X contends that compensation is
improper when one of the debts, as here, arises from a
(1) REQUISITES
contract of deposit.
(2016, 1994 BAR)

Assuming that the promissory note signed by X to

Q: Jerico, the project owner, entered into a Construction
evidence the loan does not provide for compensation
Contract with Ivan for the latter to construct his house.
between said loan and his savings deposit, who is
Jojo executed a Surety undertaking to guarantee the
correct? (1998 BAR)
performance of the work by Ivan. Jerico and Ivan later
entered into a Memorandum of Agreement (MOA)
A: Y bank is correct. Art. 1287, NCC, does not apply. All the
revising the work schedule of Ivan and the
requisites of Art. 1279, NCC are present. In the case of Gullas
subcontractors. The MOA stated that all the stipulations
vs. PNB (G.R. No. L-43191, 13 Nov. 1935), the Supreme Court
of the original contract not in conflict with said
held: “The Civil Code contains provisions regarding
agreement shall remain valid and legally effective. Jojo
compensation (set off) and deposit. These portions of
filed a suit to declare him relieved of his undertaking as
Philippine law provide that compensation shall take place
a result of the MOA because of the change in the work
when two persons are reciprocally creditor and debtor of
schedule. Jerico claims there is no novation of the
each other. In this connection, it has been held that the
Construction Contract. Decide the case and explain.
relation existing between a depositor and a bank is that of
(2016 BAR)
creditor and debtor. xxx As a general rule, a bank has a right
of set off of the deposits in its hands for the payment of any
A: I will decide in favor of Jerico as there is no novation of
indebtedness to it on the part of a depositor.” Hence,
the Construction Contract. Novation is never presumed and
compensation took place between the mutual obligations of
may only take place when the following are present: (1) a
X and Y bank.
previous valid obligation; (2) the agreement of all the
parties to the new contract; (3) the extinguishment of the
a) REQUISITES
old contract; (4) validity of the new one. There must be
(2012 BAR)
consent of all the parties to the substitution, resulting in the
extinction of the old obligation and the creation of a new
Q: The following are the requisites of legal
valid one. In this case, the revision of the work schedule of
compensation, except: (2012 BAR)
Ivan and the subcontractors is not shown to be so
substantial as to extinguish the old contract, and there was
a. That each of the obligors is bound principally
also no irreconcilable incompatibility between the old and
and that he be the same time a principal
new obligations. It has also been held in jurisprudence that
creditor of the other.
a surety may only be relieved of his undertaking if there is a
b. That both debts consist in a sum of money, or if
material change in the principal contract and such would
the things due are consumable, they be the
make the obligation of the surety onerous. The principal
same kind, and also of the same quality if the
contract subject of the surety agreement still exists, and Jojo
latter has been stated.
is still bound as a surety.
c. That the two (2) debts are not yet due.
d. That they be liquidated and demandable.
ALTERNATIVE ANSWER:

A: (c) That the two (2) debts are not yet due.
I will decide against Jerico. The provisions of the NCC on
Guarantee, other than the benefit of excussion (Art. 2059,
b) COMPENSATION OF RESCISSIBLE AND VOIDABLE
NCC), are applicable and available to the surety because a
DEBTS
surety is a guarantor who binds himself solidarily. (Art.
2047(2), NCC) The Supreme Court has held that there is no
c) NON-COMPENSABLE DEBTS
reason why the provisions of Art. 2079 would not apply to
a surety. (Autocorp Group v. Intra Strata Assurance
Corporation, G.R. No. 166662, 27 June 2008) Art. 2079 of the
NCC provides that an extension granted to the debtor by the
creditor without the consent of the guarantor extinguishes
the guaranty. The changes in the work schedule amount to
an extension granted the debtor without the consent of the
surety. Hence, Jojo’s obligation as a surety is extinguished.

131 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
If the change of work schedule, on the other hand, shortens
the time of completion of the project, it will amount to a
novation. The old obligation, where Jojo was obligated as a
surety is extinguished relatively as to him, leaving Ivan still
bound.
Q: In 1978, Bobby borrowed P1,000,000.00 form Chito
payable in 2 years. The loan, which was evidenced by a
promissory note, was secured by a mortgage on real
property. No action was filed by Chito to collect the loan
or to foreclose the mortgage. But in 1991, Bobby,
without receiving any amount from Chito, executed
another promissory note, except for the date thereof,
which was the date of its execution. (1994 BAR)
(a) Can Chito demand payment on the 1991
promissory note in 1994?
A: YES, Chito can demand payment on the 1991 promissory
note in 1994. Although the 1978 promissory note for P1
million payable two years later or in 1980 became a natural
obligation after the lapse of 10 years, such natural
obligation can be a valid consideration of a novated
promissory note dated in 1991 and payable two years later,
or in 1993.
All the elements of an implied real novation are present:
a) An old valid obligation;
b) A new valid obligation;
c) Capacity of the parties;
d) Animus novandi or intention to novate; and
e) The old and the new obligation should be incompatible
with each other on all material points. (Art. 1292) The
two promissory notes cannot stand together, hence,
the period of prescription of 10 years has not yet
lapsed.
(b) Can Chito foreclose the real estate mortgage if
Bobby fails to make good his obligation under
the 1991 promissory note?
A: NO. The mortgage being an accessory contract
prescribed with the loan. The novation of the loan, however,
did not expressly include the mortgage, hence, the mortgage
is extinguished under Art. 1296 of the NCC. The contract has
been extinguished by the novation or extinction of the
principal obligation insofar as third parties are concerned.
c) EXPROMISSION AND DELEGACION DISTINGUISHED
(2014, 2001, 1996 BAR)
Q: J.C. Construction bought steel bars from Matibay
Steel Industries (MSI) which is owned by Buddy
Batungbacal. J.C. failed to pay the purchased materials
worth P500,000.00 on due date. J.C. persuaded its client
Amoroso with whom it had receivables to pay its
obligation to MSI. Amoroso agreed and paid MSI the
amount of P50,000.00. After two (2) other payments,
Amoroso stopped making further payments. Buddy
filed a complaint for collection of the balance of the
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
obligation and damages against J.C. J.C. denied any
liability claiming that its obligation was extinguished
by reason of novation which took place when MSI
accepted partial payments from Amoroso on its behalf.
Was the obligation of J.C. Construction to MSI
extinguished by novation? Why? (2014 BAR)
A: NO, the obligation of JC was not extinguished by novation.
Novation may either be objective or subjective. Subjective
novation takes place by the substitution of debtor or
subrogation of a third person to the rights of the creditor.
Novation by substituting a new debtor may take place even
without the knowledge or against the will of the original
debtor but not without the consent of the creditor.
Moreover, novation must be expressed and it cannot be
implied and there must be an agreement that the old
obligation is extinguished. In the case of JC, it does not
appear that MSI had agreed to release JC from the
obligation. Hence, the obligation of JC was not extinguished.
(1) CONSENT REQUIRED
(2001, 1996 BAR)
Q: The sugar cane planters of Batangas entered into a
long-term milling contract with the Central Azucarera
de Don Pedro Inc. 10 years later, the Central assigned
its rights to the said milling contract to a Taiwanese
group which would take over the operations of the
sugar mill. The planters filed an action to annul the said
assignment on the ground that the Taiwanese group
was not registered with the Board of Investments. Will
the action prosper or not? Explain briefly. (2001 BAR)
A: The action will prosper not on the ground invoked but on
the ground that the farmers have not given their consent to
the assignment. The milling contract imposes reciprocal
obligations on the parties. The sugar central has the
obligation to mill the sugar cane of the farmers while the
latter have the obligation to deliver their sugar cane to the
sugar central. As to the obligation to mill the sugar cane, the
sugar central is a debtor of the farmers. In assigning its
rights under the contract, the sugar central will also transfer
to the Taiwanese its obligation to mill the sugar cane of the
farmers. This will amount to a novation of the contract by
substituting the debtor with a third party. Under Art. 1293
of the NCC, such substitution cannot take effect without the
consent of the creditor. The former, who are creditors as far
as the obligation to mill their sugar cane is concerned, may
annul such assignment for not having given their consent
thereto.
Q: Baldomero leased his house with a telephone to Jose.
The lease contract provided that Jose shall pay for all
electricity, water and telephone services in the leased
premises during the period of the lease. Six months
later, Jose surreptitiously vacated the premises. He left
behind unpaid telephone bills for overseas telephone
calls amounting to over P20,000.00. Baldomero refused
to pay the said bills on the ground that Jose had already
132
 QuAMTO (1987-2022)
substituted him as the customer of the telephone
company. The latter maintained that Baldomero II. CONTRACTS
remained as his customer as far as their service
contract was concerned, notwithstanding the lease
contract between Baldomero and Jose.

Who is correct, Baldomero or the telephone company? A. GENERAL PROVISIONS

Explain. (1996 BAR) (2018, 2013, 2012, 2011 BAR)

A: The telephone company is correct because as far as it is

concerned, the only person it contracted with was 1. DEFINITION OF A CONTRACT
Baldomero. The telephone company has no contract with
Jose. Baldomero cannot substitute Jose in his stead without
the consent of the telephone company. (Art. 1293, NCC) 2. ELEMENTS OF A CONTRACT
Baldomero is, therefore, liable under the contract.
a) ESSENTIAL ELEMENTS
(2) EFFECT OF INSOLVENCY OF NEW DEBTOR (2013 BAR)

d) LEGAL AND CONVENTIONAL SUBROGATION b) NATURAL ELEMENTS

(2022 BAR)

Q: Gio, single, joined a marathon organized by Takbo B. BASIC PRINCIPLES OF CONTRACTS

Co. For lack of alternative routes, the marathon course (2017, 2012, 2011, 2002 BAR)
included a public road which was not blocked-off from
vehicles. Takbo Co. solicited the sponsorship of Kotse
Corp. for added financial support. Gio was hit by a
jeepney driven by JD on the public road and died. The 1. OBLIGATORY FORCE OF A CONTRACT
parents of Gio sued Takbo Co. and Kotse Corp. for (2011 BAR)
damages. The court ruled that Kotse Corp. is solidarily
liable for damages with Takbo Co. for being one of the 2. FREEDOM TO STIPULATE
principal movers of the event due to its sponsorship. Is (AUTONOMY OF THE WILL) AND ITS LIMITATIONS
the court correct? Explain briefly. (2022 BAR) (2012 BAR)

A: NO, PIC is not correct. PIC here is claiming the right which Q: It is rule which holds that the freedom of the parties
Anj originally had against the person causing the damage
to contract includes the freedom to stipulate, provided
and such cause of action is based on a quasi-delict. Actions the stipulations are not contrary to law, morals, good
based on a quasi- delict must be instituted within a period
customs, public order or public policy. (2012 BAR)
of four years which must be reckoned from the time of the
commission of the tort. (Art. 1146, NCC) On the other hand, A) Obligatory force of contracts
subrogation transfers to the person subrogated the credit B) Mutuality of contracts
with all the rights thereto appertaining, either against the
C) Autonomy of contracts
debtor or against third persons. (Art. 1303, Civil Code)
D) Relativity of contracts

Following the principles of subrogation, PIC, as the insurer, A: (C) Autonomy of contracts
only steps into the shoes of the insured Anj and therefore,
for purposes of prescription, inherits only the remaining
3. BINDING EFFECT OF A CONTRACT
period within which the insured may file an action against
(2012 BAR)
the wrongdoer. The indemnification of the insured by the
insurer only allows it to be subrogated to the former's rights
and does not create a new reckoning point for the cause of Q: It refers to the rule that a contract is binding not only
action that the insured originally has against the between parties but extends to the heirs, successors in
wrongdoer. (Henson vs. UCPB General Insurance, G.R. No. interest, and assignees of the parties, provided that the
223134, 14 Aug. 2019) Thus, since the quasi-delict was contract involved transmissible rights by their nature,
committed in 2014, PIC's action against Leon should have or by stipulation or by law. (2012 BAR)
been filed within four years and the action filed in 2022 was
filed out of time. (Central Bar Q&A by Paguirigan, 2022) A) Obligatory force of contracts
B) Mutuality of contracts
C) Autonomy of contracts
D) Relativity of contracts

133 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
A: (D) Relativity of contracts
4. PRIVITY OF CONTRACT
(2002 BAR)
a) CONCEPT
b) EXCEPTIONS TO THE RULE ON PRIVITY OF
CONTRACTS
(2002 BAR)
Q: Printado is engaged in the printing business. Suplico
supplies printing paper to Printado pursuant to an
order agreement under which Suplico binds himself to
deliver the same volume of paper every month for a
period of 18 months, with Printado in turn agreeing to
pay within 60 days after each delivery. Suplico has been
faithfully delivering under the order agreement for 10
months but thereafter stopped doing so, because
Printado has not made any payment at all. Printado has
also a standing contract with publisher Publico for the
printing of 10,000 volumes of school textbooks. Suplico
was aware of said printing contract. After printing
1,000 volumes, Printado also fails to perform under its
printing contract with Publico. Suplico sues Printado
for the value of the unpaid deliveries under their order
agreement. At the same time Publico sues Printado for
damages for breach of contract with respect to their
own printing agreement.
In the suit filed by Suplico, Printado counters that: (a)
Suplico cannot demand payment for deliveries made
under their order agreement until Suplico has
completed performance under said contract; (b)
Suplico should pay damages for breach of contract; and
(c) with Publico should be liable for Printado’s breach
of his contract with Publico because the order
agreement between Suplico and Printado was for the
benefit of Publico.
Are the contentions of Printado tenable? Explain your
answers as to each contention. (2002 BAR)
A: NO, the contentions of Printado are untenable. Printado
having failed to pay for the printing paper covered by the
delivery invoices on time, Suplico has the right to cease
making further delivery. And the latter did not violate the
order agreement. (Integrated Packaging Corporation v.
Court of Appeals, G.R. No. 115117, 08 June 2000. Suplico
cannot be held liable for damages, for breach of contract, as
it was not, he who violated the order agreement, but
Printado Suplico cannot be held liable for Printado’s breach
of contract with Publico. He is not a party to the agreement
entered into by and between Printado and Publico. Theirs is
not a stipulation pour atrui. Such contracts could not affect
third persons like Suplico because of the basic civil law
principle of relativity of contracts which provides that
contracts can only bind the parties who entered into it, and
it cannot favor or prejudice a third person, even if he is
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
aware of such contract and has acted with knowledge
thereof. (Integrated Packaging Corporation v. Court of
Appeals, G.R. No. 115117, 08 June 2000)
5. CONSENSUALITY OF CONTRACTS
(2017 BAR)
a) CONCEPT AND COVERAGE
b) EXCEPTIONS
c) REFORMATION OF INSTRUMENTS
(2017 BAR)
Q: Zeny and Nolan were best friends for a long time
already. Zeny borrowed P310,000.00 from Nolan,
evidenced by a promissory note whereby Zeny
promised to pay the loan “once his means permit.” Two
months later, they had a quarrel that broke their long-
standing friendship. Nolan seeks your advice on how to
collect from Zeny despite the tenor of the promissory
note. what will your advice be? Explain your answer.
(2017 BAR)
A: The remedy of Nolan is to go to court and ask that a
period be fixed for the payment of the debt. Art. 1180 of the
NCC provides that when a debtor binds himself to pay when
his means permit him to do so, the obligation shall be
deemed to be one with a period (suspensive). Art. 1197
provides that the Courts may fix a period if such was
intended from the nature of the obligation and may also fix
the duration of the period when such depends on the will of
the debtor. (UPLC Suggested Answers)
C. ESSENTIAL REQUISITES OF A CONTRACT
(2020-21, 2005, 2004, 1991 BAR)
Q: Marvin offered to construct the house of Carlos for a
very reasonable price of P900,000.00, giving the latter
10 days within which to accept or reject the offer. On the
fifth day, before Carlos could make up his mind, Marvin
withdrew his offer. (2005 BAR)
(a) What is the effect of the withdrawal of Marvin's
offer?
A: NONE. The withdrawal of Marvin’s offer shall have no
effect because no contract has been perfected yet. Aside
from having no meeting of the minds between the parties,
there was no consideration paid for the option. An option
contract is a separate contract from the contract, which is
the subject of the offer, and if not supported by any
consideration, the option contract is not deemed perfected.
Thus, Marvin’s withdrawal of offer shall have no effect.
134
 QuAMTO (1987-2022)
(b) Will your answer be the same if Carlos paid
Marvin P10,000.00 as consideration for that
option? Explain.
A: NO. If Carlos paid P10,000.00 as consideration for that
option, Marvin cannot withdraw the offer prior to
expiration of the option period. The option is a separate
contract and if founded on consideration is a perfected
option contract and must be respected by Marvin.
(c) Supposing that Carlos accepted the offer before
Marvin could communicate his withdrawal
thereof? Discuss the legal consequences.
A: If Carlos has already accepted the offer and such
acceptance has been communicated to Marvin before the
latter communicates the withdrawal, the acceptance
creates a perfected construction contract, even if no
consideration was as yet paid for the option. If Marvin does
not perform his obligations under the perfected contract of
construction, he shall be liable for all consequences arising
from the breach thereof based on any of the available
remedies which may be instituted by Carlos, such as specific
performance, or rescission with damages in both cases.
1. CONSENT
Q: Your significant other shows you a laptop screen on
which a mandatory question for the installation of an
app appears. The question reads: “Do you agree to the
terms and conditions of use?” There are two buttons
indicating alternative responses: one is labeled
“Agree”; the other is labeled “Disagree.”
The terms and conditions of use are not shown on the
screen. Neither is there a hyperlink that can be clicked
that would reveal the terms and conditions of use of the
app being installed. Curious why the terms and
conditions of use are not available, you search the
internet and come across media articles revealing that
the terms and conditions of use allow the app provider
to access a user’s contact list, emails, and browsing
history. These pieces of information are sold to
advertisers who, in turn, tailor their emails to users so
that they can engage in targeted advertising based on
the user’s profiles.
Knowing that you are taking the #BestBarEver2020_21,
your significant other asks you this legal question: By
clicking on “Agree”, will there be a “meeting of the
minds” between the user and the app provider enabling
access to the user’s contact list, emails, and browsing
history? Explain briefly. (2020-21 BAR)
A: NO, there will be no meeting of the minds between the
app provider and the user even if the latter clicked the
“Agree” button. A contract is defined as a meeting of the
minds between two persons whereby one binds himself
with respect to the other to do something or to render some
service. (Art. 1305, NCC) It has three essential requisites
135
namely: consent, object, and cause or consideration.
Consent is manifested by the meeting of the offer and
acceptance upon the thing and the cause which are to
constitute the contract. (Art. 1318, NCC) Thus, the consent
should pertain to the acceptance of the object and the cause.
Based on these requisites, there could have been no valid
consent on the part of the user to terms and conditions that
are not even made known by the app provider. If at all, the
consent given by the user pertains only to the use of the app
and not for the app provider to gain access to the contact
list, emails, and browsing history. (Bar Q&A by Paguirigan,
2023)
Q: Dr. and Mrs. Almeda are prominent citizens of the
country and are frequent travelers abroad. In 1996,
they booked round-trip business class tickets for the
Manila-Hong Kong-Manila route of the Pinoy Airlines,
where they are holders of Gold Mabalos Class Frequent
Flier cards. On their return flight, Pinoy Airlines
upgraded their tickets to first class without their
consent and, despite their protestations to be allowed
to remain in the business class so that they could be
with their friends, they were told that the business class
was already fully booked, and that they were given
priority in upgrading because they are elite
members/holders of Gold Mabalos Class cards. Since
they were embarrassed at the discussions with the
flight attendants, they were forced to take the flight at
the first-class section apart from their friends who were
in the business class. Upon their return to Manila, they
demanded a written apology from Pinoy Airlines. When
it went unheeded, the couple sued Pinoy Airlines for
breach of contract claiming moral and exemplary
damages, as well as attorney's fees. Will the action
prosper? Give reasons. (2005, 2004 BAR)
A: YES, the action will prosper as Pinoy Airlines breached
its contract of carriage by upgrading the seat
accommodation of the Almedas without their consent. The
object of their contract was the transportation of the
Almedas from Manila to Hongkong and back to Manila, with
seats in the business class section of the aircraft. They
should have been consulted first whether they wanted to
avail themselves of the privilege and would consent to a
change of seat accommodation. It should not have been
imposed on them over their vehement objection. By
insisting on the upgrade, Pinoy Airlines breached its
contract of carriage with the Almedas.
However, the upgrading or the breach of contract was not
attended by fraud or bad faith. They were not induced to
agree to the upgrading through insidious words or deceitful
machination or through willful concealment of material
facts. Bad faith does not simply connote bad judgment or
negligence; it imports a dishonest purpose or some moral
obliquity and conscious doing of a wrong, breach of a known
duty through some motive or interest or ill will that partake
of the nature of fraud.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Neither is Pinoy Airlines in bad faith since Sec. 3 of the
Economic Regulation No. 7 of the Civil Aeronautics Board D. DEFECTIVE CONTRACTS
provides that an overbooking that does not exceed 10% is
not considered deliberate and therefore does not amount to
bad faith.
Q: Briefly explain whether the following contracts are
valid, rescissible, unenforceable, or void: (2012, 2017
As a result, the Almedas are not entitled to recover moral
BAR)
damages. Moral damages predicated upon a breach of
contract of carriage may only be recoverable in instances
(a) A contract of sale between Lana and Andy
where the carrier is guilty of fraud or bad faith or when the
wherein 16-year old Lana agreed to sell her
mishap resulted in the death of a passenger. Where in
grand piano for P5, 000.00.
breaching the contract of carriage the airline is not shown
to have acted fraudulently or in bad faith, liability for
A: The contract of sale is voidable, because Lana is a minor,
damages is limited to the natural and probable consequence
and is thus incapable of giving consent to a contract.
of the breach of the obligation which the parties had
foreseen or could have reasonably foreseen. In such a case
(b) A contract of lease of the Philippine Sea entered
the liability does not include moral and exemplary damages.
by and between Mitoy and Elsa.

It is a requisite in the grant of exemplary damages that the

A: The contract of sale is void, because its object, the
act of the offender be accompanied by bad faith or done in
Philippine Sea, is outside the commerce of men.
wanton, fraudulent or malevolent manner. Such requisite is
absent in this case. Moreover, to be entitled thereto the
ALTERNATIVE ANSWER:
claimant must first establish his right to moral, temperate,
or compensatory damages. Since the Almedas are not
The contract of sale is void under Art. 1306, NCC because it
entitled to any of these damages, the award for exemplary
is against public policy.
damages has no legal basis. And where the awards for moral
and exemplary damages are eliminated, so must the award
ALTERNATIVE ANSWER:
for attorney’s fees.
The contract of sale is void as it is prohibited by a treaty,
The most that can be awarded for the breach of contract is
which is considered binding law in the Philippines.
an award for nominal damages. Pinoy Airlines may be said
to have disturbed the spouses’ wish to be with their
NOTE: Under Art. 137 of the UNCLOS, the Philippine Sea is
companions at the Business Class on their flight to Manila.
governed by the following mandates: [xxx] (b) No State or
(Cathay Pacific v. Spouses Vasquez, G.R. No. 150843, 14 Mar.
natural or juridical person shall appropriate any part
2003)
thereof [xxx]

2. OBJECT (c) A barter of toys executed by 12-year-old

(1991 BAR) Clarence and 10-year-old Czar.

Q: May succession be conferred by contracts or acts A: The contract is unenforceable, because both parties,
inter vivos? (1991 BAR) being minors, are incapable of giving consent.

A: NO. Under Art. 84, FC amending Art. 130, NCC,
contractual succession is no longer possible since the law
now requires that donations of future property be governed
by the provisions on the testamentary succession and
formalities of wills.
3. CAUSE OR CONSIDERATION
(d) A sale entered by Barri and Garri, both minors,
which their parents later ratified.
A: The contract is valid and may not be annulled by either
party due to the ratification by the parents of Barri and
Garri, if done while both were still minors. Ratification
extinguishes the action to annul a voidable contract, or an
unenforceable contract, as in this case were both parties
were minors and may be done by the parents, as guardians
of the minor children. (Art. 1407, NCC)

(e) Jenny’s sale of her car to Celestine in order to

evade attachment by Jenny’s creditors.

A: The contract is rescissible because it is in fraud of

creditors. (Art. 1381, NCC)

U N I V E R S IT Y O F S A N T O T O M A S 136
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
Q: Michael Fermin, without the authority of Pascual
Lacas, owner of a car, sold the same car in the name of
Mr. Lacas to Atty. Buko. The contract between Atty.
Buko and Mr. Lacas is ______ (2012 BAR)
A) void because of the absence of consent from the
owner, Mr. Lacas.
B) valid because all of the essential requisites of a
contract are present.
C) unenforceable because Michael Fermin had no
authority but he sold the car in the name of Mr.
Lacas, the owner.
D) rescissible because the contract caused lesion to
Atty. Buko.
A: (C) unenforceable because Michael Fermin had no
authority but he sold the car in the name of Mr. Lacas, the
owner.
1. RESCISSIBLE CONTRACTS
(1998 BAR)
2. VOIDABLE CONTRACTS
(2004, 1996, 1990 BAR)
Q: Distinguish briefly but clearly between inexistent
and annullable contracts. (2004 BAR)
A: Inexistent contracts are considered as not having been
entered into and, therefore, void ab initio. They do not
create any obligation and cannot be ratified or validated, as
there is no agreement to ratify or validate. In the other hand,
annullable or voidable contracts are valid until invalidated
by the court but may be ratified.
On inexistent contracts, one or more requisites of a valid
contract are absent. In annullable contracts, all the elements
of a contract are present except that the consent of one of
the contracting parties was vitiated or one of them has no
capacity to give consent.
Q: Jackie, 16, inherited a townhouse. Because she
wanted to study in an exclusive school, she sold her
townhouse by signing a Deed of Sale and turning over
possession of the same to the buyer. When the buyer
discovered that she was still a minor, she promised to
execute another Deed of Sale when she turns 18. When
Jackie turned 25 and was already working, she wanted
to annul the sale and return the buyer’s money to
recover her townhouse. Was the sale contract void,
voidable, or valid? Can Jackie still recover the property?
Explain. (2015 BAR)
A: The contract is voidable. Where one of the parties is
incapable of giving consent to a contract, the contract is
voidable. (Art. 1390, NCC) It appears that only Jackie was
incapacitated by virtue of her minority.
137
Jackie cannot recover the property. First, since the contract
voidable, Jackie only had four (4) years from the time she
attained the age of majority to bring an action for
annulment of contract. (Art. 1391, NCC) In this case, Jackie
should have brought the action for annulment of the
contract within 4 years after turning 18 years old, or up
until the age of 22. Since she is already 25 years old, the
period for the bring the action has prescribed. Second,
Jackie may be considered to have actively misrepresented
as to her age. Thus, she will be bound to the contract under
the principle of estoppel. (UPLC Suggested Answers)
Q: Sometime in 1955, Tomas donated a parcel of land to
his stepdaughter Irene, subject to the condition that she
may not sell, transfer or cede the same for 20 years.
Shortly thereafter, he died. In 1965, because she
needed money for medical expenses, Irene sold the
land to Conrado. The following year, Irene died, leaving
as her sole heir a son by the name of Armando. When
Armando learned that the land which he expected to
inherit had been sold by Irene to Conrado, he filed an
action against the latter for annulment of the sale, on
the ground that it violated the restriction imposed by
Tomas. Conrado filed a motion to dismiss, on the
ground that Armando did not have the legal capacity to
sue. If you were the judge, how will you rule on this
motion to dismiss? Explain. (1996 BAR)
A: As judge, I will grant the motion to dismiss. Armando has
no personality to bring the action for annulment of the sale
to Conrado. Only an aggrieved party to the contract may
bring the action for annulment thereof. (Art. 1397, NCC)
While Armando is heir and successor-in-interest of his
mother (Art. 1311, NCC), he, standing in place of his mother,
has no personality to annul the contract. Both are not
aggrieved parties on account of their own violation of the
condition of, or restriction on, their ownership imposed by
the donation. Only the donor or his heirs would have the
personality to bring an action to revoke a donation for
violation of a condition thereof or a restriction thereon.
(Garrido v. Court of Appeals, G.R. No. 101262, 14 Sept. 1994)
Consequently, while the donor or his heirs were not parties
to the sale, they have the right to annul the contract of sale
because their rights are prejudiced by one of the contracting
parties thereof. (DBP v. Court of Appeals, G.R. No. L-28774, 28
Feb. 1980; Teves v. PHHC, G.R. No. L-21498, 27 June 1968)
Since Armando is neither the donor nor heir of the donor,
he has no personality to bring the action for annulment.
Q: X was the owner of a 10,000 square meter property.
X married Y and out of their union, A, B and C were born.
After the death of Y, X married Z and they begot as
children, D, E and F. After the death of X, the children of
the first and second marriages executed an
extrajudicial partition of the aforestated property on
01 May 1970. D, E and F were given a 1,000 square
meter portion of the property. They were minors at the
time of the execution of the document. D was 17 years
old, E was 14, and F was 12; and they were made to
believe by A, B and C that unless they sign the document
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
they will not get any share. Z was not present then. In
January 1974, D, E, and F filed an action in court to
nullify the suit alleging they discovered the fraud only
in 1973. (1990 BAR)
(a) Can the minority of D, E, and F be a basis to
nullify the partition? Explain your answer
A: YES. minority can be a basis to nullify the partition
because D, E, and F were not properly represented by their
parents or guardians at the time they contracted the
extrajudicial partition. (Arts. 1327 & 1391, NCC)
(b) How about fraud? Explain your answer.
A: In the case of fraud, when through insidious words or
machinations of one of the other is induced to enter into the
contract without which he would not have agreed to, the
action still prosper because under Art. 1391, NCC, in case of
fraud, the action for annulment may be brought within 4
years from the discovery of the fraud.
3. UNENFORCEABLE CONTRACTS
(2019, 2014, 2012 BAR)
Q: Which of the following actions or defenses are
meritorious: (2013 BAR)
A) An action for recovery of down payment paid under
a rescinded oral sale of real property.
B) A defense in an action for ejectment that the lessor
verbally promised to extend or renew the lease.
C) An action for payment of sum of money filed against
one who orally promised to answer another's debt
in case the latter defaults.
D) A defense in an action for damages that the debtor
has sufficient, but unliquidated assets to satisfy the
credit acquired when it becomes due.
E) None of the above.
A: A. (UPLC Suggested Answers)
Q: In 2017, Alma orally sold a parcel of unregistered
land to the spouses Ray and Shane for Php 500,000.00.
Upon receipt of the initial payment of Php 350,000.00,
Alma delivered possession of the land to the spouses.
Shortly thereafter, Alma died. To formalize the sale, Ray
and Shane convinced Josie, one of Alma’s children, to
sign a notarized deed of confirmation of sale. In
consideration thereof, Josie received Php 150,000.00
representing the balance of the purchase price. On the
strength of the notarized confirmation of sale, the
spouses were able to transfer the tax declaration of the
property in their names. Later, Josie died.
In 2020, the surviving children of Alma discovered the
oral sale of the land to Ray and Shane. They demanded
the return of the property on the following grounds: (i)
the oral contract of sale is void because it does not
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
appear in a public instrument; and (ii) assuming the
sale is not void, it is unenforceable under the Statute of
Frauds. Ray and Shane insisted that the sale of the land
to them was both valid and enforceable.
Are the contentions of the heirs of Alma tenable?
Explain briefly. (2022 BAR)
A: NO, the contentions of the heirs of Alma are untenable.
First, an oral contract of sale is considered valid and binding
between the contracting parties for as long as the essential
requisites of consent, object, and cause or consideration are
present. Thus, even if the contract of sale was not reduced
into writing, it does not render it void because contracts
shall be obligatory in whatever form they may have been
entered into provided all the essential requisites for their
validity are present. (Art. 1356, NCC).
As to the contention that the contract is unenforceable, the
same is likewise untenable. Although under the Statute of
Frauds, the sale of real property or any interest therein
must be evidenced by some note or memorandum, the rule
has been settled that the Statute of Frauds only applies to
executory contracts. In the case presented, the price has
actually been fully paid and the possession of the property
has been delivered, thus the contract has been fully
performed rendering the Statute of Frauds inapplicable.
(Heirs of Villeza v. Aliangan, G.R. No. 244667-69, 02 Dec.
2020) (Central Bar Q&A by Paguirigan, 2023)
Q: Mr. P offered to sell his Manila Polo Club shares to Ms.
Q for P2,500,000.00. Ms. Q accepted on the condition
that their agreement will not take effect until after 1
year. Mr. P then acceded and both of them shook hands.
Excited about the prospect of acquiring Mr. P’s shares,
Ms. Q approached the former and offered to pay him an
earnest money equivalent to 1% of the purchase price,
which Mr. P accepted. After 1 year, Ms. Q approached
Mr. P seeking the enforcement of their agreement for
Mr. P to sell his shares to her. Mr. P refused to honor
their agreement, claiming that the same was covered by
the Statute of Frauds because it was no reduced into
writing and hence, unenforceable. Is the position of Mr.
P correct? Explain (2019 BAR)
A: NO, the position of P is incorrect. The Statute of Frauds
only applies to purely executory contracts; partial
performance removes the contract from the ambit of the
Statute of Frauds and not to partially or completely
executed contracts. Art. 1482, NCC provides that whenever
earnest money is given in a contract of sale, it shall be
considered as part of the price and as proof of the perfection
of the contract. The payment of earnest money, such as in
this case, is tantamount to partial execution of the contract
which precludes that application of the Statute of Frauds.
The contract has been partially performed and a benefit was
already accepted when the seller accepted earnest money
from the buyer. (Art. 1403(2(d), NCC); Averia v. Averia, G.R.
No. 141877, 13 Aug. 2004; Mactan-Cebu International
Airport Authority v. Tudtud, G.R. No. 174012, 14 Nov. 2008)
138
 QuAMTO (1987-2022)
(UPLC Suggested Answers) Apr. 1966)

4. VOID CONTRACTS Q: Maria Enriquez failed to pay the realty taxes on her
(2017, 2012, 2004, 1999, 1991 BAR) unregistered agricultural land located in Magdugo,
Toledo City. In 1989, to satisfy the taxes due, the City
sold it at public auction to Juan Miranda, an employee
Q: Distinguish briefly but clearly between inexistent
at the Treasurer’s Office of said City, whose bid at
contracts and annullable contracts. (2004 BAR)
P10,000.00 was the highest. In due time, a final bill of
sale was executed in his favor.
A: In inexistent contracts, one or more requisites of a valid
contract are absent. In anullable contracts, all the elements
Maria refused to turn-over the possession of the
of a contract are present except that the consent of one of
property to Juan alleging that (1) she had been, in the
the contracting parties was vitiated or one of them has no
meantime, granted a free patent and on the basis
capacity to give consent. Inexistent contracts are
thereof an Original Certificate of Title (OCT) was issued
considered as not having been entered into and, therefore,
to her, and (2) the sale in favor of Juan is void from the
void ab initio. They do not create any obligation and cannot
beginning in view of the provision in the Administrative
be ratified or validated, as there is no agreement to ratify or
Code of 1987 which prohibits officers and employees of
validate. On the other hand, annullable or voidable
the government from purchasing directly or indirectly
contracts are valid until invalidated by the court but may be
any property sold by the government for non-payment
ratified. (2009-2017 UST FCL Bar Q&A)
of any tax, fee or other public charge. (1991 BAR)

Q: In 1950, the Bureau of Lands issued a Homestead

(a) If the sale is void, may Juan recover the
patent to A. Three years later, A sold the homestead to
P10,000.00? If not, why not?
B. A died in 1990, and his heirs filed an action to recover
the homestead from B on the ground that its sale by
A: YES, Juan may recover because he was not a party to the
their father to the latter is void under Sec. 118 of the
violation of the law.
Public Land Act (PLA). B contends, however, that the
heirs of A cannot recover the homestead from him
(b) If the sale is void, did it not nevertheless,
anymore because their action has prescribed and that
operate to divest Maria of her ownership? If it
furthermore, A was in pari delicto. Decide. (1999 BAR)
did, who then is the owner of the property?

A: The sale of the land by A to B three (3) years after

A: NO, the sale did not divest Maria of her title precisely
issuance of the homestead patent, being in violation of Sec.
because the sale is void. It is as good as if no sale ever took
118 of the PLA, is void from its inception. The action filed by
place.
the heirs of B to declare the nullity or inexistence of the
contract and to recover the land should be given due course.
In tax sales, the owner is divested of his land initially upon
award and issuance of a Certificate of Sale, and finally after
B’s defense of prescription is untenable because an action
the lapse of the one-year period from date of registration, to
which seeks to declare the nullity or inexistence of a
redeem, upon execution by the treasurer of an instrument
contract does not prescribe. (Art. 1410, NCC; Banga v. Soler,
sufficient in form and effects to convey the property. Maria
G.R. No. L-15717, 30 June 1961)
remained owner of the land until another tax sale is to be
performed in favor of a qualified buyer.
On the other hand, B’s defense of pari delicto is equally
untenable. While as a rule, parties who are in pari delicto
have no recourse against each other on the principle that a
transgressor cannot profit from his own wrongdoing, such III. NATURAL OBLIGATIONS
rule does not apply to violations of Sec. 118 of the PLA
because of the underlying public policy in the said Act “to
conserve the land which a homesteader has acquired by Q: Distinguish civil and natural obligations. (2015, 2011
gratuitous grant from the government for himself and his Bar Question)
family”. In keeping with this policy, it has been held that one
who purchases a homestead within the five-year A: A civil obligation is based on positive law which gives a
prohibitory period can only recover the price which he has right of action to compel their performance in case of
paid by filing a claim against the estate of the deceased breach. A natural obligation is based on equity and natural
seller. (Labrador vs. Delos Santos, G.R. No. L-4094, 29 Nov. law and cannot be enforced by court action but after
1951) under the principle that no one shall enrich himself at voluntary fulfilment by the obligor, they authorize the
the expense of another. Applying the pari delicto rule to retention of what may have been delivered or rendered by
violations of Sec. 118 of the PLA, the CA has ruled that “the reason thereof. (Art. 1423, NCC)
homesteader suffers the loss of the fruits realized by the
vendee who in turn forfeits the improvement that they have
introduced into the land”. (Obot vs. Sandadlillas, 62 OG, 25

139 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
SPECIAL CONTRACTS
I. SALES
A. DEFINITION AND ESSENTIAL REQUISITES
(2017, 2006, 2002, 1993, 1991 BAR)
Q: May a person sell something that does not belong to
them? (2012 BAR)
A: YES, a person may sell something which does not belong
to them. For the sale to be valid, the law does not require
the seller to be the owner of the property at the time of the
sale. (Art. 1434, NCC) If the seller cannot transfer ownership
over the thing sold at the time of delivery because he was
not the owner thereof, he shall be liable for breach of
contract
Q: Brenda saw the online advertisement of Evelyn, who
sells limited edition sneakers. Through an exchange of
text messages, Evelyn and Brenda agreed that: (i)
Evelyn will sell to Brenda a pair of brand-new sneakers
for Php 25,000.00; (ii) Brenda will deposit the purchase
price in Evelyn’s bank account; and (iii) Evelyn will
deliver the sneakers within 10 days from deposit.
Brenda deposited the purchase price and Evelyn
acknowledged receipt thereof.
Before the delivery of the sneakers, Evelyn received an
offer from Rosela to buy the same sneakers for Php
35,000.00. Evelyn candidly tells Brenda that she is
selling the sneakers at a higher price to another buyer,
and sends this text message to Brenda: “Sizt, may iba
pala akong buyer na mas malaki yung offer, sorry! Balik
ko nalang bayad mo, keri?” Evelyn claims that since the
sneakers have not yet been delivered to Brenda, she can
still withdraw the offer.
Is Evelyn’s contention tenable? Explain briefly. (2022
BAR)
A: NO, Evelyn's contention is untenable. A contract of sale is
a consensual contract as it is perfected by mere consent.
Consent is manifested by the meeting of the offer and the
acceptance upon the thing and the cause which are to
constitute the contract. (Art. 1319, NCC)
In the case presented, upon Brenda's acceptance of the
Evelyn's offer to sell the sneakers and the communication of
such acceptance to Evelyn, the contract of sale is already
perfected. Upon perfection of the contract the parties are
bound not only to the fulfilment of what has been expressly
stipulated but also to all the consequences which, according
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
to their nature, may be in keeping with good faith, usage,
and law. (Article 1315, Civil Code) In this case, Brenda has
already paid the price which Evelyn accepted. Hence,
Evelyn's contention that she can still withdraw the offer is
without merit. (Central Bar Q&A by Paguirigan, 2023)
Q: Alice agreed to sell a parcel of land with an area of
500 square meters registered in her name and covered
by TCT No. 12345 in favor of Bernadette for the amount
of ₱900,000.00. Their agreement dated 15 Oct. 2015,
reads as follows:
I, Bernadette, agree to buy the lot owned by Alice
covered by TCT No. 12345 for the amount of
₱900,000.00 subject to the following schedule of
payment:
Upon signing of agreement – ₱100,000.00
15 Nov. 2015– ₱200,000.00
15 Dec. 2015 - ₱200,000.00
15 Jan 2016 - ₱200,000.00
15 Feb. 2016 - ₱200,000.00
Title to the property shall be transferred upon full
payment of ₱900,000.00 on or before 15 Feb. 2016.
After making the initial payment of ₱100,000.00 on 15
Oct. 2015, and the second instalment of ₱200,000.00 on
15 Nov. 2015, Bernadette defaulted despite repeated
demands from Alice.
In December 2016, Bernadette offered to pay her
balance, but Alice refused and told her that the land was
no longer for sale. Due to the refusal, Bernadette caused
the annotation of her adverse claim upon TCT No.
12345 on 19 Dec. 2016. Later on, Bernadette
discovered that Alice had sold the property to Chona on
05 Feb. 2016, and that TCT No. 12345 had been
cancelled and another one issued (TCT No. 67891) in
favor of Chona as the new owner.
Bernadette sued Alice and Chona for specific
performance, annulment of sale and cancellation of
TCT No. 67891. Bernadette insisted that she had
entered into a contract of sale with Alice; and that
because Alice had engaged in double sale, TCT No.
67891 should be cancelled and another title be issued
in Bernadette's favor.
Did Alice and Bernadette enter into a contract of sale of
the lot covered by TCT No. 12345? Explain your answer.
(2017 BAR)
A: YES, they entered into a contract of sale which is a
conditional sale. Article 1458(2) of the NCC provides that a
contract of sale may be absolute or conditional.
In a contract of conditional sale, the buyer automatically
acquires title to the property upon full payment of the
purchase price. This transfer of title is “by operation of law
without any further act having to be performed by the
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 QuAMTO (1987-2022)
seller. In a contract to sell, transfer of title to the prospective
buy is not automatic. The prospective buyer must convey
title to the property through a deed of conditional sale.”
(Olivia Realty Corporation v. Castillo, G.R. No. 196251, 09 July
2014)
ALTERNATIVE ANSWER:
NO, Alice and Bernadette did not enter into a contract of
sale over the lot covered by TCT No. 12345.
In a contract of sale, the ownership passes to the vendee
upon delivery of the thing sold; in a contract to sell,
ownership is, by agreement, reserved in the vendor and is
not to pass to the vendee until full payment of the purchase
price. (Saberon v. Ventanilla, Jr., G.R. No. 192669, April 21,
2014).
Here, the title passes only upon full payment of the purchase
price, which is a hallmark of a contract to sell. Hence, Alice
and Bernadette entered a contract to sell and not a contract
of sale. (UPLC Suggested Answers)
B. CONTRACT OF SALE
Q: Distinguish Contract of sale and contract to sell.
(2019 BAR)
A: A contract of sale is one where of the seller obligates
himself to transfer the ownership and to deliver a
determinate thing, and the other to pay therefor a price
certain in money or its equivalent. In a contract of sale, the
ownership is transferred to the buyer upon delivery. On the
other hand, a contract to sell has been defined as "a bilateral
contract whereby the prospective seller, while expressly
reserving the ownership of the subject property despite
delivery thereof to the prospective buyer, binds himself to
sell the said property exclusively to the prospective buyer
upon fulfillment of the condition agreed upon, that is, full
payment of the purchase price. In a contract to sell,
ownership is retained by the seller and is not to pass until
the full payment of the price. It is commonly entered into so
as to protect the seller against a buyer who intends to buy
the property in installments by withholding ownership over
the property until the buyer effects full payment. (Tumibay
vs. Lopez G.R. No.171692, 03 June 2013) (Central Bar Q&A by
Paguirigan, 2023)
Q: A contract to sell is the same as a conditional contract
of sale. Do you agree? Explain your answer. (2012 BAR)
A: NO. A contract to sell is specie of conditional sale. The
contract to sell does not sell a thing or property; it sells the
right to buy the property. A conditional sale is a sale subject
to the happening or performance of a condition, such as
payment of the full purchase price, or the performance of
other prestation to give, to do, or not to do. Compliance with
the condition automatically gives the right to the vendee to
141
demand the delivery of the object of the sale. In a contract
to sell, however, the compliance with the condition does not
automatically sell the property to the vendee. It merely
gives the vendee the right to compel the vendor to execute
the deed of absolute sale.
Q: Aida, for the consideration of Php 5,000,000.00, sold
her parcel of land to Lorna, as evidenced by a notarized
Deed of Sale. Lorna, however, failed to deliver the
amount in full, paying only Php 500,000.00 as down
payment. Because of the nonpayment of the balance,
Aida simply sold the same parcel of land to Fe with the
intention of returning to Lorna the Php 500,000.00
down payment. Who among Aida, Lorna, and Fe owns
the property? Explain briefly. (2022 BAR)
A: As among Aida, Lorna, and Fe, it is Lorna who owns the
property. A contract of sale coupled with delivery to the
buyer transfers the ownership of the thing sold to the buyer.
(Art. 1496, NCC) Under the law on Sales, delivery may be
actual or constructive. When the sale is made through a
public instrument, the execution thereof shall be equivalent
to the delivery of the thing which is the object of the
contract, if from the deed the contrary does not appear or
cannot clearly be inferred. (Art. 1498, NCC)
Here, the contract of sale between Aida and Lorna was
coupled with constructive delivery of the land to Lorna
since the sale was executed in a public instrument. Thus,
ownership was already transferred to Loma. The
nonpayment of the full purchase price is irrelevant since it
is not required for the transfer of ownership to the buyer in
an absolute sale. Aida, being no longer the owner after the
sale and delivery to Lorna, could not transfer ownership to
Fe. Hence, it is Lorna who owns the property. (Central Bar
Q&A by Paguirigan, 2023)
ALTERNATIVE ANSWER: The case appears to be one of
double sale. The owner of the property will be the buyer
who first registered the sale in the Registry of Property.
Under the rules on double sale, if the same immovable
property be sold to different vendees, the ownership shall
belong to the person acquiring it who in good faith first
recorded it in the Registry of Property. If there is no
registration, the ownership shall pertain to the person who
in good faith was first in possession; and in the absence
thereof to the person who presents the oldest title provided
there is good faith. (Art. 1544, NCC)
Based on the facts, there are two sales transactions
pertaining to the same subject matter effected by the same
vendor. The facts do not state however whether there was
registration or whether either of the buyers took possession
of the land. Hence, based on the rules on double sale,
ownership shall pertain to the buyer who first registered
the sale in good faith. (Central Bar Q&A by Paguirigan, 2023)
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: A granted B the exclusive right to sell his brand of
Maong pants in Isabela, the price for his merchandise
payable within 60 days from delivery, and promising B
a commission of 20% on all sales. After the delivery of
the merchandise to B but before he could sell any of
them, B’s store in Isabela was completely burned
without his fault, together will all of A’s pants. Must B
pay A for his lost pants? Why? (1999 BAR)
A: YES, B must pay A. The contract between A and B is a sale
not an agency to sell because the price is payable by B upon
60 days from delivery even if B is unable to resell it. If B
were an agent, he is not bound to pay the price if he is unable
to resell it. As a buyer, ownership passed to B upon delivery
and, under Art. 1504, NCC, the thing perishes for the owner.
Hence, B must still pay the price.
1. CONTRACT TO SELL
Q: Peter and Paul entered into a Contract to Sell
whereby Peter, the lot owner, agreed to sell to Paul his
lot on 06 Nov. 2016 for the price of P1,000,000.00 to be
paid at the residence of Peter in Makati City at 1 :00 p.m.
If the full price is paid in cash at the specified time and
place, then Peter will execute a Deed of Absolute Sale
and deliver the title to Paul.
On 06 Nov. 2016, Paul did not show up and was not
heard of from that date on. In view of the
nonperformance by Paul of his obligation, Peter sent a
letter to Paul that he is expressly and extra-judicially
declaring the Contract to Sell rescinded and of no legal
and binding effect. Peter further stated that failure on
the part of Paul to contest the rescission within thirty
(30) days from receipt of said letter shall mean that the
latter agreed to the rescission.
Paul did not reply to this letter for five (5) years. Thus,
Peter decided to sell his lot to Henry in 2021. After
hearing that Henry bought the lot, Paul now questions
the sale of the lot to Henry and files a complaint for
nullification of the sale. (2016 BAR)
(a) Is the exercise by Peter of his power to
rescind extra-judicially the Contract to Sell
the proper and legal way of rescinding said
contract? Explain.
A: YES, Peter validly rescinded the contract to sell his lot to
Paul for the latter’s failure to comply with the prestation to
pay P1,000,000 on 06 Nov. 2016 at 1:00pm at the residence
of Peter so that Peter will execute the Deed of Absolute Sale.
The recission is actually the resolution of the reciprocal
obligation.
(b) In case Paul made a down payment
pursuant to a stipulation in the Contract to
Sell, what is the legal remedy of Peter?
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2023 GOLDEN NOTES
A: If Paul made a down payment, Peter may still cancel the
contract because in a contract to sell, the seller does not yet
agree to transfer ownership to the buyer. The non-payment
of the price in a contract to sell is not a breach for which the
remedy of rescission may be availed of, but rather it is
considered as a failure to comply with a positive suspensive
condition which will prevent the obligation of the seller to
convey title from acquiring obligatory force. (Ursal v. Court
of Appeals, GR No. 142411, 14 Oct. 2005)
2. OPTION CONTRACT
Q: Bert offers to buy Simeon’s property under the
following terms and conditions: P1 million purchase
price, 10% option money, the balance payable in cash
upon the clearance of the property of all illegal
occupants. The option money is promptly paid, and
Simeon clears the property of illegal occupants in no
time at all. However, when Bert tenders payment of the
balance and ask Simeon for the deed for absolute sale,
Simeon suddenly has a change of heart, claiming that
the deal is disadvantageous to him as he has found out
that the property can fetch three time the agreed
purchase price. Bert seeks specific performance but
Simeon contends that he has merely given Bert an
option to buy and nothing more, and offers to return the
option money which Bert refuses to accept. (2002, 1993
BAR)
(a) Will Bert’s action for specific performance
prosper? Explain.
A: Bert’s action for specific performance will prosper
because there was a binding agreement of sale, not just an
option contract. The sale was perfected upon acceptance by
Simeon of 10% of the agreed price. This amount is in really
earnest money which, under Art. 1482, NCC “shall be
considered as part of the price and as proof of the perfection
of the contract”. (Topacio v. Court of Appeals, G.R. No.
102606, 03 July 1992; Villongco Realty v. Bormaheco, G.R. No.
L-26872, 25 July 1975)
(b) May Simeon justify his refusal to proceed
with the sale by the fact that the deal is
financially disadvantageous to him?
Explain.
A: Simeon cannot justify his refusal to proceed with the sale
by the fact that the deal is financially disadvantageous to
him. Having made a bad bargain is not a legal ground for
pulling out a binding contract of sale, in the absence of some
actionable wrong by the other party (Vales v. Villa, G.R. No.
10028, 16 Dec. 1916) and no such wrong has been
committed by Bert.
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 QuAMTO (1987-2022)
3. RIGHT OF FIRST REFUSAL request because another had offered to buy the same
property for P1,500,000.00, cancelled its agreement
with LT and offered to return to him the amount of
Q: Tess leased her 1,500 sq.m. lot in Antipolo City to
P200,000.00 that LT had paid to it. On 20 Oct. 1985,
Ruth for a period of three (3) years from January 2010
upon receipt of the amount of P800,000.00 from his US
to February 2013. On 09 Mar. 2011, Tess sent a letter to
financier, LT offered to pay the amount by tendering a
Ruth, part of which reads as follows:
cashier’s check therefor, but which BPI refused to
accept. LT then filed a complaint against BPI in the RTC
“I am offering you to buy the property you are
for specific performance and deposited in court the
presently leasing at P5,000,00 per sq.m. or for a
amount of P800,000.00.
total P7,500,000.00. You can pay the contract price
by installment for two (2) years without interest. I
Is BPI legally correct in cancelling its contract with LT?
will give you a period of one (1) year from receipt
(1993 BAR)
of this letter to decide whether you will buy the
property.”
A: BPI is not correct in cancelling the contract with LT. In
Lina Topacio v. Court of Appeals and BPI Investment (G.R. No.
After the expiration of the lease contract, Tess sold the
102606, 03 July 1992), the Court held that the earnest money
property to her niece for a total consideration of
is part of the purchase price and is proof of the perfection of
P4,000,000.00. Ruth filed a complaint for the
the contract. Secondly, notarial or judicial rescission under
annulment of the sale, reconveyance, and damages
Arts. 1592 and 1991, NCC is necessary. (Taguba v. De Leon,
against Tess and her niece. Ruth alleged that the sale of
G.R. No. L-59980, 23 Oct. 1984)
the leased property violated her right to buy under the
principle of right of first refusal. Is the allegation of
Ruth tenable? (2014 BAR)
D. DOUBLE SALES
A: The allegation of Ruth is untenable. There was no right of (2008, 2004, 2001, 1999, 1996, 1991, 1990 BAR)
first refusal offered to her. The wording of the letter can at
most be considered a mere offer to sell or lease with an
option to buy. In Sanchez v. Rigos (G.R. No. L-25494, 14 June Q: On 15 June 1995, Jesus sold a parcel of registered
1972), the Court held that in order that a unilateral promise land to Jaime. On 30 June 1995, he sold the same land to
to buy or to sell may be binding upon the promisor. Article Jose. Who has a better right if:
1479 of the NCC requires that the said promise be
supported by a consideration distinct from the price. The (a) The first sale is registered ahead of the
promisor cannot be compelled to comply with the promise, second sale, with knowledge of the latter.
unless the existence of a consideration distinct from the Why?
price is established. In the present case, there was no
valuable or independent consideration, thus, it cannot be A: The first buyer has the better right if his sale was first to
classified as a unilateral promise to sell, but only a mere be registered, even though the first buyer knew of the
offer to sell. Since there was no valuable or independent second sale. The fact that he knew of the second sale at the
consideration, it was not an option contract but a mere time of his registration does not make him as acting in bad
option to buy, which may be withdrawn at any time. faith because the sale to him was ahead in time, hence, has
a priority in right. What creates bad faith in the case of
double sale of land is knowledge of a previous sale.
C. EARNEST MONEY
(b) The second sale is registered ahead of the
first sale, with knowledge of the latter?
Why? (2001 BAR)
Q: LT applied with BPI to purchase a house and lot in
Quezon City, one of its acquired assets. The amount
A: The first buyer is still to be preferred, where the second
offered was P1,000,000.00 payable, as follows:
sale is registered ahead of the first sale but with knowledge
P200,000.00 down payment, the balance of
of the latter. This is because the second buyer, who at the
P800,000.00 payable within 90 days from 01 June 1985.
time he registered his sale knew that the property had
BPI accepted the offer, whereupon LT drew a check for
already been sold to someone else, acted in bad faith. (Art.
P200,000.00 in favor of BPI which the latter thereafter
1544, NCC)
deposited in its account. On 05 Sept. 1985, LT wrote BPI
requesting extension until 10 Oct. 1985, within which
to pay the balance, to which BPI agreed. On 05 Oct.
1985, due to the expected delay in the remittance of the
needed amount by his financier from the United States,
LT wrote BPI requesting a last extension until 30 Oct.
1985, within which to pay the balance. BPI denied LT’s

143 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
E. RISK OF LOSS
(2014, 2003, 2000, 1993 BAR)
Q: D sold a second-hand car to E for P150,000.00. The
agreement between D and E was that half of the
purchase price or P75,000.00 shall be paid in five equal
monthly instalments of P15,000.00 each. That car was
delivered to E, and E paid the amount of P75,000.00 to
D. Less than one month thereafter, the car was stolen
from E’s garage with no fault on E’s part and was never
recovered.
Is E legally bound to pay the said unpaid balance of
P75,000.00? Explain your answer. (1990 BAR)
A: YES, E is legally bound to pay the balance of P75,000.00.
The ownership of the car sold was acquired by E from the
moment it was delivered to him. Having acquired
ownership. E bears the risk of the loss under the doctrine of
res perit domino. (Arts. 1496 & 1497, NCC)
F. BREACH OF CONTRACT OF SALE
(2020-2021, 2016 BAR)
Q: X sold a parcel of land to Y on 01 Jan. 2002, payment
and delivery to be made on 01 Feb. 2002. It was
stipulated that if payment were not to be made by Y on
01 Feb. 2002, the sale between the parties would
automatically be rescinded. Y failed to pay on 01 Feb.
2002, but offered to pay three days later, which
payment X refused to accept, claiming that their
contract of sale had already been rescinded.
Is X’s contention correct? Why? (2003 BAR)
A: NO, X is not correct. In the sale of immovable property,
even though it may have been stipulated, as in this case, that
upon failure to pay the price at the time agreed upon the
rescission of the contract shall of right take place, the
vendee may pay, even after the expiration of the period, as
long as no demand for rescission of the contract has been
made upon him either judicially or by a notarial act. (Art.
1592, NCC) Since no demand for rescission was made on Y,
either judicially or by a notarial act, X cannot refuse to
accept the payment offered by Y three (3) days after the
expiration of the period.
Q: Pablo sold his car to Alfonso who issued a postdated
check in full payment therefor. Before the maturity of
the check, Alfonso sold the car to Gregorio who later
sold it to Gabriel. When presented for payment, the
check issued by Alfonso was dishonored by the drawee
bank for the reason that he, Alfonso, had already closed
his account even before he issued his check. Pablo sued
to recover the car from Gabriel alleging that he (Pablo)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
had been unlawfully deprived of it by reason of
Alfonso's deception. Will the suit prosper? (1991, 1990
BAR)
A: NO. The suit will not prosper because Pablo was not
unlawfully deprived of the car although he was unlawfully
deprived of the price. The perfection of the sale and the
delivery of the car was enough to allow Alfonso to have a
right of ownership over the car, which can be lawfully
transferred to Gregorio. Art. 559 applies only to a person
who is in possession in good faith of the property, and not
to the owner thereof. Alfonso, in the problem, was the
owner, and, hence, Gabriel acquired the title to the car. Non-
payment of the price in a contract of sale does not render
ineffective the obligation to deliver. The obligation to
deliver a thing is different from the obligation to pay its
price. (EDCA Publishing Co. v. Sps. Santos, G.R. No. 80298, 26
Apr. 1990)
Q: Pablo sold his car to Alfonso who issued a postdated
check in full payment therefore. Before the maturity of
the check, Alfonso sold the car to Gregorio who later
sold it to Gabriel. When presented for payment, the
check issued by Alfonso was dishonored by the drawee
bank for the reason that he, Alfonso, had already closed
his account even before he issued his check.
Pablo sued to recover the car from Gabriel alleging that
he had been unlawfully deprived of it by reason of
Alfonso’s deception. Will the suit prosper? (1991 BAR)
A: NO, the suit will not prosper because Pablo was not
unlawfully deprived of the car although he was unlawfully
deprived of the price. The perfection of the sale and the
delivery of the car was enough to allow Alfonso to have a
right of ownership over the car, which can be lawfully
transferred to Gregorio. Art. 559 of the NCC applies only to
a person who is in possession in good faith of the property,
and not to the owner thereof. Alfonso, in the problem, was
the owner, and, hence, Gabriel acquired the title to the car.
Non-payment of the price in a contract of sale does not
render ineffective the obligation to deliver. The obligation
to deliver a thing is different from the obligation to pay its
price. (EDCA Publishing Co. v. Sps. Santos, G.R. No. 80298, 26
Apr. 1990)
1. RECTO LAW
Q: Sonny Inc., (SI) purchased several heavy machineries
from Single Equipment Philippines, Inc. (SEP) for PhP
10 million, payable in 36 monthly installments. A
chattel mortgage was constituted on the same
machineries as security for the amount. As additional
security, the President of SI, Stan Smith, mortgaged his
personal house and lot. SI failed to pay the 16th and
succeeding monthly installments. SEP then commenced
a collection suit against SI, and in the course of the
proceedings, a writ of attachment was issued against
SI’s properties, including the mortgaged machineries.
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 QuAMTO (1987-2022)
The attached properties were subsequently sold at
public action, but the proceeds thereof were
insufficient to satisfy the judgment credit. (2018 BAR)
(a) Can SEP legally recover the deficiency?
A: YES, SEP can legally recover the deficiency. The
prohibition against further collection under Art. 1484 or the
Recto Law, only applies if the seller chooses to foreclose the
chattel mortgage and not when the seller opts to exact the
fulfillment of the obligation. (Tajanlangit v. Southern Motors,
G.R. 10789, 28 May 1957) SEP chose to exact the fulfillment
of the obligation by commencing a collection suit against SI.
SEP did not opt to foreclose the chattel mortgage over the
equipment. The machineries were sold in an execution sale
and not in a foreclosure sale; hence, the prohibition against
further collection does not apply.
(b) Instead of collecting the deficiency, can SEP
commence extrajudicial proceedings to
foreclose the mortgage on Stan’s house and
lot in order to recover the deficiency?
A: YES, SEP can commence extrajudicial proceedings to
foreclose the mortgage. SEP may choose to foreclose the
mortgage on Stan’s house and lot. What SEP is prohibited to
do, based on the case Cruz v. Filipinas Investment & Finance
Corporation (G.R. No. L-24772, 27 May 1968), is to
extrajudicially foreclose the mortgage after it has
extrajudicially foreclosed the chattel mortgage on the
machineries sold on instalment, because if such is allowed,
the protection given by Art. 1484 would be indirectly
subverted, and public policy overturned. In this case, SEP
has not foreclosed the chattel mortgage over the
machineries.
ALTERNATIVE ANSWER:
NO, because when SEP commenced the collection suit, it
thereby waived its mortgage lien. (Caltex Philippines, Inc. v.
IAC, G.R. No. 74730 25 Aug. 1989) The remedies of an
ordinary action to collect the debt and foreclosure of the
real estate mortgage are alternative remedies and not
cumulative. An election of one remedy operates as a waiver
of the other. The mere act of filing a collection suit for the
recovery of a debt secured by a mortgage constitutes waiver
of the other remedy of foreclosure. (Art. 1484(3), NCC)
2. MACEDA LAW
Q: What are the so-called "Maceda" and "Recto" laws in
connection with sales on installments? Give the most
important features of each law. (1999 BAR)
A: The Maceda Law (R.A. No. 6552) is applicable to sales of
immovable property on installments. The most important
features are (Rillo v. Court of Appeals, G.R. No. 125347, 19
June 1997):
145
1. After having paid installments for at least two
years, the buyer is entitled to a mandatory grace
period of one month for every year of installment
payments made, to pay the unpaid installments
without interest. If the contract is cancelled, the
seller shall refund to the buyer the cash surrender
value equivalent to fifty percent (50%) of the total
payments made, and after five years of
installments, an additional five percent (5%) every
year but not to exceed ninety percent (90%) of the
total payments made.
2. In case the installments paid were less than 2 years,
the seller shall give the buyer a grace period of not
less than 60 days. If the buyer fails to pay the
installments due at the expiration of the grace
period, the seller may cancel the contract after 30
days from receipt by the buyer of the notice of
cancellation or demand for rescission by notarial
act.
The Recto Law (Art. 1484, NCC) refers to sale of movables
payable in installments and limiting the right of seller, in
case of default by the buyer, to one of three remedies:
1. Exact fulfillment;
2. Cancel the sale if two or more installments have not
been paid; or
3. Foreclose the chattel mortgage on the things sold,
also in case of default of two or more installments,
with no further action against the purchaser.
Q: Priscilla purchased a condominium unit in Makati
City from the Citiland Corporation for a price of P10
Million, payable P3 Million down and the balance with
interest thereon at 14% per annum payable in 60 equal
monthly installments of P198,333.33. They executed a
Deed of Conditional Sale in which it is stipulated that
should the vendee fail to pay three (3) successive
installments, the sale shall be deemed automatically
rescinded without the necessity of judicial action and
all payments made by the vendee shall be forfeited in
favor of the vendor by way of rental for the use and
occupancy of the unit and as liquidated damages. For 46
months, Priscilla paid the monthly installments
religiously, but on the 47th and 48th months, she failed
to pay. On the 49th month, she tried to pay the
installments due, but the vendor refused to receive the
payments tendered by her. The following month, the
vendor sent her a notice that it was rescinding the Deed
of Conditional Sale pursuant to the stipulation for
automatic rescission, and demanded that she vacate the
premises. She replied that the contract cannot be
rescinded without judicial demand or notarial act
pursuant to Art. 1592, NCC. (2014, 2010 BAR)
a) Is Art. 1592 applicable?
U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
A: Art. 1592, NCC does not apply to a conditional sale. In
Valarao v. Court of Appeals (G.R. No. 130347, 03 Mar. 1999),
the Court held that Art. 1592 applies only to a contract of
sale and not to a Deed of Conditional Sale where the seller
has reserved title to the property until full payment of the
purchase price. The law applicable is the Maceda Law.
b) Can the vendor rescind the contract?
A: NO, the vendor cannot rescind the contract under the
circumstances. Under the Maceda Law, which is the law
applicable, the seller on installment may not rescind the
contract until after the lapse of the mandatory grace period
of 30 days for every one year of installment payments, and
only after 30 days from notice of cancellation or demand for
rescission by a notarial act. In this case, the refusal of the
seller to accept payment from the buyer on the 49th month
was not justified because the buyer was entitled to 60 days
grace period and the payment was tendered within that
period. Moreover, the notice of rescission served by the
seller on the buyer was not effective because the notice was
not by a notarial act. Besides, the seller may still pay within
30 days from such notarial notice before rescission may be
effected. All these requirements for a valid rescission were
not complied with by the seller. Hence, the rescission is
invalid.
Q: Sps. Macario and Bonifacia Dakila entered into a
contract to sell with Honorio Cruz over a parcel of
industrial land in Valenzuela, Bulacan for a price of
P3,500,000.00. The spouses would give a down
payment of P500,000.00 upon the signing of the
contract, while the balance would be paid for the next
three (3) consecutive months in the amount of
P1,000,000.00 per month. The spouses paid the first
two (2) installments but not the last installment. After
one (1) year, the spouses offered to pay the unpaid
balance which Honorio refused to accept. The spouses
filed a complaint for specific performance against
Honorio invoking the application of the Maceda Law.
If you were the judge, how will you decide the case?
(2014 BAR)
A: I will dismiss the complaint. The invocation of the
Maceda Law by the spouses is misplaced. Sec. 3 of R.A. 6552
(Maceda Law) provides that it is applicable in all
transactions or contracts involving the sale or financing of
real estate on instalment payments, including residential
condominium apartments but excluding industrial lots,
commercial buildings and sales to tenants. Since the subject
of the case is an industrial land, Maceda Law is not
applicable.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
G. EXTINGUISHMENT OF THE SALE
(2016, 2005, 2002, 2001, 1995, 1993, 1991 BAR)
1. CONVENTIONAL REDEMPTION
2. LEGAL REDEMPTION
H. EQUITABLE MORTGAGE
Q: On 13 Mar. 2008, Ariel entered into a Deed of
Absolute Sale (DAS) with Noel where the former sold
his titled lot in Quezon City with an area of 300 square
meters to the latter for the price of P300,000.00. The
prevailing market value of the lot was P3,000.00 per
square meter. On 20 Mar. 2008, they executed another
"Agreement To Buy Back/Redeem Property" where
Ariel was given an option to repurchase the property on
or before 20 Mar. 2012 for the same price. Ariel,
however, remained in actual possession of the lot. Since
Noel did not pay the taxes, Ariel paid the real property
taxes to avoid a delinquency sale.
On 21 Mar. 2012, Ariel sent a letter to Noel, attaching
thereto a manager's check for P300,000.00 manifesting
that he is redeeming the property. Noel rejected the
redemption claiming that the DAS was a true and valid
sale representing the true intent of the parties. Ariel
filed a suit for the nullification of the DAS or the
reformation of said agreement to that of a Loan with
Real Estate Mortgage. He claims the DAS and the
redemption agreement constitute an equitable
mortgage. Noel however claims it is a valid sale with
pacto de retro and Ariel clearly failed to redeem the
property.
As the RTC judge, decide the case with reasons. (2016
BAR)
A: I will decide in favor of Ariel and allow the reformation
of the agreement. The DAS and the redemption agreement
constitute an equitable mortgage and Ariel may ask for the
reformation of the agreement to that of a Loan with Real
Estate Mortgage as allowed by Art. 1605, NCC. The
circumstances clearly show that the agreement is an
equitable mortgage, such as the: a) price of the lot was
inadequate since it was only sold at P300,000.00 when the
prevailing market value of such was P900,000.00; b) the
vendor, Ariel, remained in the actual possession of the
property after the purported sale; and c) Ariel was the one
who paid the real property taxes. Under the circumstances,
a presumption arises under Art. 1602, NCC that what was
really executed was an equitable mortgage. Moreover, Art.
1603, NCC provides that in case of doubt, a contract
purporting to be a sale with right to repurchase shall be
146
 QuAMTO (1987-2022)
construed as an equitable mortgage.
Q: Eulalia was engaged in the business of buying and
selling large cattle. To secure the financial capital, she
advanced for her employees (biyaheros). She required
them to surrender TCT of their properties and to
execute the corresponding Deeds of Sale in her favor.
Domeng Bandong was not required to post any security
but when Eulalia discovered that he incurred shortage
in cattle procurement operation, he was required to
execute a Deed of Sale over a parcel of land in favor of
Eulalia. She sold the property to her grandniece Jocelyn
who thereafter instituted an action for ejectment
against the Sps. Bandong. To assert their right, Sps.
Bandong filed an action for annulment of sale against
Eulalia and Jocelyn alleging that there was no sale
intended but only equitable mortgage for the purpose
of securing the shortage incurred by Domeng in the
amount of P 70, 000.00 while employed as "biyahero" by
Eulalia. Was the Deed of Sale between Domeng and
Eulalia a contract of sale or an equitable mortgage?
Explain. (2012 BAR)
A: The contract between Domeng Bandong and Eulalia was
an equitable mortgage rather than a contract of sale. The
purported deed of sale was actually intended to merely
secure the payment of the shortage incurred by Domeng in
the conduct of the cattlebuying operations. Under Art. 1602,
the contract shall be presumed to be an equitable mortgage
when it may be fairly inferred that the real intention of the
parties is simply to secure the payment of a debt or the
performance of any other obligation. The present
transaction was clearly intended to just secure the shortage
incurred by Eulalia because Bandong remained in
possession of the property despite the execution of the sale.
Q: On 14 July 2004, Pedro executed in favor of Juan a
Deed of Absolute Sale over a parcel of land covered by
TCT No. 6245. It appears in the Deed of Sale that Pedro
received from Juan P120,000.00 as purchase price.
However, Pedro retained the owner's duplicate of said
title. Thereafter, Juan, as lessor, and Pedro, as lessee,
executed a contract of lease over the property for a
period of one (1) year with a monthly rental of
P1,000.00. Pedro, as lessee, was also obligated to pay
the realty taxes on the property during the period of
lease.
Subsequently, Pedro filed a complaint against Juan for
the reformation of the Deed of Absolute Sale, alleging
that the transaction covered by the deed was an
equitable mortgage. In his verified answer to the
complaint, Juan alleged that the property was sold to
him under the Deed of Absolute Sale, and interposed
counterclaims to recover possession of the property
and to compel Pedro to turn over to him the owner's
duplicate of title.
Resolve the case with reasons. (2005 BAR)
147
A: An equitable mortgage arises from a transaction,
regardless of its form, which results into a security, or an
offer or attempt to pledge land as security for a debt or
liability. Its essence is the intent of the parties to create a
mortgage, lien or charge on the property sufficiently
described or identified to secure an obligation, which intent
must be clearly established in order that such a mortgage
may exist.
Defendant’s defense that he acquired the land through an
Absolute Deed of Sale and not through pacto de retro is
untenable. The presumption of equitable mortgage under
Art. 1602 of the NCC equally applies to a contract
purporting to be an absolute sale. (Art. 1604, NCC) The facts
and circumstances that Pedro retained possession of the
Owner’s
Duplicate Copy of the Certificate of Title; that he remained
in possession of the land as lessee; that he bound himself to
pay the realty taxes during the period of lease, are matters
collectively and strongly indicating that the Deed of
Absolute Sale is an equitable mortgage. In case of doubt, the
Deed of Absolute Sale should be considered as a loan with
mortgage, because this juridical relation involves a lesser
transmission of rights and interests.
If the transaction is proven to be an equitable mortgage,
Pedro’s prayer for reformation of the instrument should be
granted in accordance with Art. 1605, NCC. Thus, in case of
non-payment, he may foreclose the mortgage and
consolidate his ownership of the land. In that event, Juan’s
counterclaim to recover possession of the land and to
compel Pedro to surrender the Owner’s Duplicate Copy of
the title becomes a consequential right.
Q: Betty and Lydia were co-owners of a parcel of land.
Last 31 Jan. 2001, when she paid her real estate tax,
Betty discovered that Lydia had sold her share to Emma
on 10 Nov. 2000. The following day, Betty offered to
redeem her share from Emma, but the latter replied
that Betty's right to redeem has already prescribed. Is
Emma correct or not? Why? (2001 BAR)
A: NO, Emma, the buyer, is not correct. Betty can still
enforce her right of legal redemption as a co-owner. Art.
1623, NCC gives a co-owner 30 days from written notice of
the sale by the vendor to exercise his right of legal
redemption. In the present problem, the 30- day period for
the exercise by Betty of her right of redemption had not
even begun to run because no notice in writing of the sale
appears to have been given to her by Lydia.
Q: On 20 Dec. 1970, Juliet, a widow, borrowed from
Romeo P4,000.00 and, as security therefore, she
executed a deed of mortgage over one of her two (2)
registered lots which has a market value of P15,000.00.
The document and the certificate of title of the property
were delivered to Romeo.
U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
On 02 June 1971, Juliet obtained an additional sum of L-47120, 15 Oct. 1990), the contract may still be sustained
P3,000.00 from Romeo. On this date, however, Romeo as an equitable mortgage, given the circumstances
caused the preparation of a deed of absolute sale of the expressed in Art. 1602, NCC. The reserved right to
above property, to which Juliet affixed her signature repurchase is then deemed an original intention.
without first reading the document. The consideration
indicated is P7,000.00 She thought that this document (b) If you decide in favor of Romeo and Y, would
was similar to the first she signed. When she reached you uphold the validity of the promise to
home, her son X, after reading the duplicate copy of the sell?
deed, informed her that what she signed was not a
mortgage but a deed of absolute sale. On the following A: If I were to decide in favor of Romeo and Y, I would not
day, 03 June 1971, Juliet accompanied by X, went back uphold the validity of the promise to sell, so as to enforce it
to Romeo and demanded the reformation. Romeo by an action for specific performance. The promise to sell
prepared and signed a document wherein, as vendee in would only amount to a mere offer and, therefore, it is not
the deed of sale abovementioned, he obligated and enforceable unless it was sought to be exercised before a
bound himself to resell the land to Juliet or her heirs withdrawal or denial thereof.
and successors for the same consideration as reflected
in the deed of sale (P7,000.00) within a period of two Even assuming the facts given at the end of the case there
(2) years, or until 03 June 1973. It is further stated would have been no separate consideration for such
therein that should the Vendor (Juliet) fail to exercise promise to sell. The contract would at most amount to an
her right to redeem within the said period, the option which again may not be the basis for an action for
conveyance shall be deemed absolute and irrevocable. specific performance.
Romeo did not take possession of the property. He did
not pay the taxes thereon.
I. PACTO DE RETRO SALE
Juliet died in January 1973 without having repurchased
the property. Her only surviving heir, her son X, failed
to repurchase the property on or before 03 June 1973.
Q: On 02 Jan. 1980, A and B entered into a contract
In 1975, Romeo sold the property to Y for P50,000.00.
whereby A sold to B a parcel of land for and in
Upon learning of the sale, X filed an action for the
consideration of P10,000.00, A reserving to himself the
nullification of the sale and for the recovery of the
right to repurchase the same. Because they were
property on the ground that the so-called deed of
friends, no period was agreed upon for the repurchase
absolute sale executed by his mother was merely an
of the property. (1993 BAR)
equitable mortgage, taking into account the inadequacy
of the price and the failure of Romeo to take possession
(a) Until when must A exercise his right of
of the property and to pay the taxes thereon. Romeo
repurchase?
and Y maintain that there was a valid absolute sale and
that the document signed by the former on 03 June
A: A can exercise his right of repurchase within four (4)
1973 was merely a promise to sell. (1991 BAR)
years from the date of the contract. (Art. 1606, NCC)

(a) If you were the Judge, would you uphold the

(b) If A fails to redeem the property within the
theory of X?
allowable period, what would you advise B
to do for his better protection?
A: If I were the Judge, I will not uphold the theory of X for
the nullification of the sale and for the recovery of the
A: I would advise B to file an action for consolidation of title
property on the ground that the so-called sale was only an
and obtain a judicial order of consolidation which must be
equitable mortgage. An equitable mortgage may arise only
recorded in the Registry of Property. (Art. 1607, NCC)
if, in truth, the sale was one with the right of repurchase.
The facts of the case state that the right to repurchase was
granted after the absolute deed of sale was executed.
Following the rule in Vda. de Cruzo v. Carriaga Jr. (G.R. Nos.
75109-10 28 June 1989), a deed of repurchase executed
independently of the deed of sale where the two
stipulations are found in two instruments instead of one
document, the right of repurchase would amount only to
one option granted by the buyer to the seller. Since the
contract cannot be upheld as a contract of sale with the right
to repurchase, Art. 1602, NCC on equitable mortgage will
not apply. The rule could have been different if both deeds
were executed on the same occasion or date, in which case,
under the ruling in Sps. Claravall v. Court of Appeals (G.R. No.

U N I V E R S IT Y O F S A N T O T O M A S 148
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
II. LEASE
Q: Jungkook, who owns a building, leases the same to
Gel with the following terms: (i) the lease is for a period
of ten years; (ii) the yearly rental is Php 1,200,000.00
payable within the first ten days of the current year;
and (iii) in case of breach of any of the provisions of the
lease, Gel is liable to pay Jungkook five monthly rentals
and attorney’s fees. Five years into the lease, Gel sends
a notice to terminate the lease and offers to pay five
monthly rentals. Despite Jungkook’s objections, Gel
vacates the premises. Jungkook sues Gel for the rentals
due for the remaining five years of the lease. Gel takes
the position that her liability should only be limited to
five monthly rentals and attorney’s fees. (2022 BAR)
(a) Is there a penalty clause in the lease
agreement? Explain briefly.
A: YES, there is a penalty clause in the lease agreement. The
penalty clause here consists of the liability of Gel to pay
Jungkook five monthly rentals and attorney's fees in case of
breach of the terms of the lease. This is clearly a penalty
clause as it is intended to substitute the indemnity for
damages and the payment of interests in case of non-
compliance with the obligation. (Art. 1226, NCC) (Central
Bar Q&A by Paguirigan, 2023)
(b) As between Jungkook and Gel, who is correct?
Explain briefly.
A: GEL is correct. Generally, if the lessor or the lessee should
not comply with their obligations, the aggrieved party may
ask for either the rescission of the contract and
indemnification for damages, or only the latter, allowing the
contract to remain in force. Since the parties have already
provided for the penalty clause that should be paid by the
lessee in case of non-compliance, the penalty clause shall be
the measure of the indemnity to be paid to the lessor in case
the lessee commits a breach of the terms of the lease. (D.M.
Ragasa Enterprises vs. Banco de Oro, G.R. No. 190512, 20 June
2018) (Central Bar Q&A by Paguirigan, 2023)
149
A. KINDS OF LEASE
Q: Under what circumstances would an implied new
lease or a tacita reconduccion arise? (1999 BAR)
A: An implied new lease or tacita reconduccion arises if at
the end of the contract the lessee should continue enjoying
the thing leased for 15 days with the acquiescence of the
lessor, and unless a notice to the contrary by either party
has previously been given. (Art. 1670, NCC) In short, in order
that there may be tacita reconduccion there must be
expiration of the contract; there must be continuation of
possession for 15 days or more; and there must be no prior
demand to vacate.
Q: Under a written contract dated 01 Dec. 1989, Victor
leased his land to Joel for a period of five (5) years at a
monthly rental of P1,000.00, to be increased to
P1,200.00 and P1,500.00 on the third and fifth year,
respectively. On 01 Jan. 1991, Joel subleased the land to
Conrad for a period of two (2) years at a monthly rental
of P1,500.00. On 31 Dec. 1992, Joel assigned the lease to
his compadre, Ernie, who acted on the belief that Joel
was the rightful owner and possessor of the said lot. Joel
has been faithfully paying the stipulated rentals to
Victor. When Victor learned on 18 May 1992 about the
sublease and assignment, he sued Joel, Conrad and
Ernie for rescission of the contract of lease and for
damages. (2005 BAR)
(a) Will the action prosper? If so, against
whom? Explain.
A: YES, the action for rescission of the lease will prosper
because Joel cannot assign the lease to Ernie without the
consent of Victor. (Art. 1649, NCC) But Joel may sublet to
Conrad because there is no express prohibition. (Art. 1650,
NCC; Alipio v. Court of Appeals, G.R. No. 134100. 29 Sept.
2000) Victor can rescind the contract of lease with Joel, and
the assignment of the lease to Ernie, on the ground of
violation of law and of contract. The sub-lease to Conrad
remained valid for two (2) years from 01 Jan. 1991 and had
not yet lapsed when the action was filed on 15 May 1992.
(b) In case of rescission, discuss the rights and
obligations of the parties.
A: In case of rescission, the rights and obligations of the
parties should be as follows: At the time that Victor filed suit
on 15 May 1992, the assignment had not yet lapsed. It would
lapse on 01 Dec. 1994, the very same date that the 50-year
basic lease would expire. Since the assignment is void,
Victor can get the property back because of the violation of
the lease. Both Joel and Ernie have to surrender possession
and are liable for damages. But Conrad has not yet incurred
any liability on the sublease which still subsisted at the time
of the filing of the action on 15 May 1992. Ernie can file a
crossclaim against Joel for damages on account of the
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
rescission of the contract of assignment. Conrad can file a
counterclaim against Victor for damages for lack of cause of
action at the time of the filing of the suit.
B. RIGHTS AND OBLIGATIONS OF THE LESSOR
(2019, 2010, 1994 BAR)
contract stated that in the payment of rentals within the
first five days of the month, time is of the essence or that the
lessee will be in delay if he falls to pay within the agreed
period without need of demand. In this case he can judicially
eject the tenant on the ground of lack of payment of the
price stipulated after a demand to vacate. (Art. 1673(2),
NCC)

(b) Can the building owner ask for the cancellation

of the contract for violation of the provision
Q: A had a 4-storey building which was constructed by
against assignment?
Engineer B. After five 5 years, the building developed
cracks and its stairway eventually gave way and
A: NO. The lessor cannot have the lease cancelled for alleged
collapsed, resulting to injuries to some lessees. Who
violation of the provision against assignment. The lessee did
should the lessees sue for damages? (2010 BAR)
not assign the lease, or any portion thereof, to the
subsidiaries. It merely subleased some floors to its
A: The lessees may proceed against A for breach of contract,
subsidiaries. Since the problem does not state that the
and against B for tort or statutory liability. Under Art.
contract of lease contains a prohibition against sublease, the
1654(2), NCC, the lessor is obliged to make all the necessary
sublease is lawful, the rule being that in the absence of an
repairs in order to keep the leased property suitable for the
express prohibition a lessee may sublet the thing leased, in
use to which it has been devoted. Consequently, under Art.
whole or in part, without prejudice to his/its responsibility
1659, NCC, the proprietor of a building or structure is
to the lessor for the performance of the contract.
responsible for the damages resulting from its total or
partial collapse, if it is due to the lack of necessary repairs.
Q: A vacant lot several blocks from the center of the
town was leased by its owner to a young businessman
Under Art. 1723, NCC, the engineer or architect who drew
B, for a term of 15 years renewal upon agreement of the
up the plans and specifications for a building is liable for
parties. After taking possession of the lot, the lessee
damages if within 15 years from the completion of the
built thereon a building of mixed materials and a store.
structure, the same should collapse by reason of a defect in
As the years passed, he expanded his business, earning
those plans and specifications, or due to the defects in the
more profits. By the 10th year of his possession, he was
ground. This liability may be enforced against the architect
able to build a three-story building worth at least
or engineer even by a third party who has no privity of
P300,000.00. Before the end of the term of the lease, B
contract with the architect or engineer under Art. 2192, NCC.
negotiated with the landowner for its renewal, but
despite their attempts to do so, they could not agree on
Q: In Jan. 1993, Four-Gives Corporation leased the
the new conditions for the renewal. Upon the expiration
entire twelve floors of the GQS Towers Complex, for a
of the term of the lease, the landowner asked B to vacate
period of ten (10) years at a monthly rental of
the premises and remove his building and other
P3,000,000.00. There is a provision in the contract that
improvements. B refused unless he was reimbursed for
the monthly rentals should be paid within the first five
necessary and useful expenses. B claimed that he was a
days of the month. For the month of March, May, June,
possessor and builder in good faith, with right of
Oct. and Dec. 1993, the rentals were not paid on time
retention. This issue is now before the court for
with some rentals being delayed up to ten days. The
resolution in a pending litigation. (1990 BAR)
delay was due to the heavy paperwork involved in
processing the checks. Four-Gives Corporation also
(a) What are the rights of B?
subleased five of the twelve floors to wholly-owned
subsidiaries. The lease contract expressly prohibits the
A: B has the right to remove the building and other
assignment of the lease contract or any portion thereof.
improvements unless the landowner decides to retain the
The rental value of the building has increased by 50%
building at the time of the termination of the lease and pay
since its lease to Four-Gives Corporation. (1994 BAR)
the lessee one-half of the value of the improvements at that
time. The lessee may remove the building even though the
(a) Can the building owner eject Four-Gives
principal thing may suffer damage, but B should not cause
Corporation on grounds of the repeated delays
any more impairment upon the property leased than is
in the payment of the rent?
necessary. The claim of B that he was a possessor and
builder in good faith with the right of retention is not
A: NO, the building owner cannot eject Four-Gives
tenable. B is not a builder in good faith, because as lessee he
Corporation on the ground of repeated delays in the
does not claim ownership over the property leased.
payment of rentals. The delay in the payment of the rentals
is minimal and cannot be made the basis of an ejectment
(b) What are the rights of the landowner?
suit. The delay was due to the heavy paperwork involved in
processing the checks. It would be otherwise if the lease

U N I V E R S IT Y O F S A N T O T O M A S 150
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
A: The landowner/lessor may refuse to reimburse one-half Q: Simon owned a townhouse that he rented out to
(1/2) of the value of the improvements and require the Shannon, a flight attendant with Soleil Philippine
lessee to remove the improvements. (Art. 1678, NCC) Airlines (SPA). They had no written contract but merely
agreed on a 3-year lease. Shannon had been using the
townhouse as her base in Manila and had been paying
C. RIGHTS AND OBLIGATIONS OF THE LESSEE rentals for more than a year when she accepted a better
(2019, 2018, 2004, 2001, 2000, 1999, 1996, 1990 job offer from Sing Airlines. This meant that Singapore
BAR) was going to be her new base and so she decided,
without informing Simon, to sublease the townhouse to
Sylvia, an office clerk in SPA. Does the sublease without
Simon’s knowledge and consent constitute a ground for
Q: Mr. A entered into a lease contract covering one of his
terminating the lease? (2018 BAR)
commercial buildings with XYZ Company, a partnership
composed of X, Y, and Z, as lessee, for use as an office
A: NO, it does not constitute a ground for terminating the
space. Upon failure to receive the rental payments
lease. In the contract of lease of things, if there is no express
when they fell due, Mr. A immediately sought payment
prohibition, the lessee may sublet the thing leased (Article
of the same from X, Y, and Z, asserting that the
1650, NCC). In this contract, there appears to be no
individual partners are solidarily liable together with
prohibition regarding subleasing; thus, there is no violation
the partnership for its debts. X, Y, and Z disagreed with
of the contract which can be used as a ground for
Mr. A's contention, arguing further that in any event,
terminating the contract. The act of a lessee in subleasing
rentals should not be paid up until Mr. A makes the
the thing without notifying the lessor leased is not one of
necessary arrangements for the repair of the defective
the causes for which the lessor may terminate the lease and
electrical wirings in the office that caused power
judicially eject the lessee (Article 1673, NCC).
outages and hence, made it difficult, if not impossible,
for them to conduct their usual business operations.
Q: TX filed a suit for ejectment against BD for non-
Rule on the parties' respective arguments. (2019 BAR)
payment of condominium rentals amounting to
P150,000. During the pendency of the case, BD offered
A: The contention of Mr. A is not correct because under
and TX accepted the full amount due as rentals from BD,
Article 1816, all partners including industrial ones, shall be
who then filed a motion to dismiss the ejectment suit on
liable pro rata with all their property only after all the
the ground that the action is already extinguished. Is
partnership assets have been exhausted, for the contracts
BD’s contention correct? Why or why not? Reason.
which may be entered into in the name and for the account
(2004 BAR)
of the partnership. The liability will not attach to the
individual partners until after the partnership assets have
A: NO, BD's contention is not correct. TX can still maintain
been exhausted. Such liability is only pro rata and not
the suit for ejectment. The acceptance by the lessor of the
solidary except if the obligation falls under Article 1822 and
payment by the lessee of the rentals in arrears even during
1823.
the pendency of the ejectment case does not constitute a
waiver or abandonment of the ejectment case. (Sps. Clutario
Neither is the contention of X, Y, and Z tenable. The lessor is
v. Court of Appeals, G.R. No. 76656, 11 Dec. 1992)
under obligation to make all the necessary repairs on the
property leased in order to keep it suitable for the use to
Q: On 01 Jan. 1980, Nestor leased the fishpond of Mario
which it has been devoted, unless there is a stipulation to
for a period of three years at a monthly rental of
the contrary. If the lessor fails to comply with this
P1,000.00, with an option to purchase the same during
obligation, the lessee may ask for rescission of the contract
the period of the lease for the price of P500,000.00.
with damages or he may opt to continue with the lease and
After the expiration of the three-year period, Mario
ask only for damages from the lessor. (Arts. 1654 & 1659,
allowed Nestor to remain in the leased premises at the
NCC) (Central Bar Q&A by Paguirigan, 2023)
same rental rate. On 15 June 1983, Nestor tendered the
amount of P500,000.00 to Mario and demanded that
ALTERNATIVE ANSWER:
the latter execute a deed of absolute sale of the fishpond
in his favor. Mario refused, on the ground that Nestor
X, Y, and Z may suspend the payment of rentals if they opt
no longer had an option to buy the fishpond. Nestor
to continue with the lease if the lessor fails to make the
filed an action for specific performance. Will the action
necessary repairs on the property leased. (Art. 1658, NCC)
prosper or not? Why? (2001 BAR)
(Central Bar Q&A by Paguirigan, 2023)

A: NO, the action will not prosper. The implied renewal of

the lease on a month-to-month basis did not have the effect
of extending the life of the option to purchase which expired
at the end of the original lease period. The lessor is correct
in refusing to sell on the ground that the option had expired.

151 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: A leased his house to B with a condition that the
leased premises shall be used for residential purposes
only. B subleased the house to C who used it as a
warehouse for fabrics. Upon learning this, A demanded
that C stop using the house as a warehouse, but C
ignored the demand, A then filed an action for
ejectment against C, who raised the defense that there
is no privity of contract between him and A, and that he
has not been remiss in the payment of rent. Will the
action prosper? (2000 BAR)
A: YES, the action will prosper. Under Art. 1651, NCC, the
sublessee is bound to the lessor for all acts which refer to
the use and preservation of the thing leased in the manner
stipulated between the lessor and the lessee.
Q: A leased a parcel of land to B for a period of two years.
The lease contract did not contain any express
prohibition against the assignment of the leasehold or
the subleasing of the leased premises. During the third
year of the lease, B subleased the land to C. In turn, C,
without A's consent, assigned the sublease to D. A then
filed an action for the rescission of the contract of lease
on the ground that B has violated the terms and
conditions of the lease agreement. If you were the
judge, how would you decide the case, particularly with
respect to the validity of:
Explain your answers. (1990 BAR)
(a) B’s sublease to C?

Q: May a lessee sublease the property leased without
the consent of the lessor, and what are the respective
liabilities of the lessee and sub-lessee to the lessor in
case of such sublease? (1999 BAR)
A: YES, provided that there is no express prohibition
against subleasing. Under the law, when in the contract of
lease of things there is no express prohibition, the lessee
may sublet the thing leased without prejudice to his
responsibility for the performance of the contract toward
the lessor. (Art. 1650, NCC)
A: B's sublease to C is valid. Although the original period of
two years for the lease contract has expired, the lease
continued with the acquiescence of the lessor during the
third year. Hence, there has been an implied renewal of the
contract of lease. Under Art. 1650 of the NCC, the lessee may
sublet the thing leased, in whole or in part, when the
contract of lease does not contain any express prohibition.
(Arts. 1650 & 1670, NCC) A's action for rescission should not
prosper on this ground.
(b) C’s assignment of the sublease to D?

In case there is a sublease of the premises being leased, the A: C's assignment of the sublease to D is not valid. Under Art.
sublessee is bound to the lessor for all the acts which refer 1649 of the NCC the lessee cannot assign the lease without
to the use and preservation of the thing leased in the the consent of the lessor, unless there is a stipulation to the
manner stipulated between the lessor and the lessee. (Art. contrary. There is no such stipulation in the contract. If the
1651, NCC) The sublessee is subsidiarily liable to the lessor law prohibits assignment of the lease without the consent
for any rent due from the lessee. However, the sublessee of the lessor, all the more would the assignment of a
shall not be responsible beyond the amount of the rent due sublease be prohibited without such consent. This is a
from them. (Art. 1652, NCC) violation of the contract and is a valid ground for rescission
by A.
As to the lessee, the latter shall still be responsible to the
lessor for the rents; bring to the knowledge of the lessor
every usurpation or untoward act which any third person
may have committed or may be openly preparing to carry
out upon the thing leased; advise the owner the need for all
repairs; to return the thing leased upon the termination of
the lease just as he received it, save what has been lost or
impaired by the lapse of time or by ordinary wear and tear
or from an inevitable cause; responsible for the
deterioration or loss of the thing leased, unless they prove
that it took place without their fault.

Q: Bartolome constructed a chapel on the land of Eric.

What are Bartolome’s rights if he were a lessee of the
land? (1996 BAR)

A: The owner of the land, as lessor, can acquire the

improvement by paying for one-half of its value. Should the
lessor refuse to reimburse said amount, the lessee may
remove the improvement, even though the principal thing
may suffer damage thereby. (Art. 1678, NCC)

U N I V E R S IT Y O F S A N T O T O M A S 152
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 QuAMTO (1987-2022)
ALTERNATIVE ANSWER:
III. AGENCY
CX is not personally liable to the bank loan because it was
contracted by DY in his personal capacity. Only the property
of CX is liable. Hence, while CX has authorized the mortgage
Q: Jo-Ann asked her close friend, Aissa, to buy some
on his property to secure the loan of DY, the bank cannot
groceries for her in the supermarket. Was there a
sue CX to collect the loan in case DY defaults thereon. The
nominate contract entered into between Jo-Ann and
bank can only foreclose the property of CX.
Aissa? In the affirmative, what was it? Explain. (2003
BAR)
ALTERNATIVE ANSWER:

A: YES, there was a nominate contract. On the assumption

While as a general rule the principal is not liable for the
that Aissa accepted the request of her close friend Jo-Ann to
contract entered into by his agent in case the agent acted in
buy some groceries for her in the supermarket, what they
his own name without disclosing his principal, such rule
entered into was the nominate contract of Agency. Art.
does not apply if the contract involves a thing belonging to
1898, NCC provides that by the contract of agency a person
the principal. In such case, the principal is liable under
binds themselves to render some service or to do something
Article 1883 of the Civil Code. The contract is deemed made
in representation or on behalf of another, with the consent
on his behalf. (Sy-juco v. Sy-juco, G.R. No. L-13471, 12 Jan.
or authority of the latter.
1920)

ALTERNATIVE ANSWER:
Q: A as principal appointed B as his agent granting him
general and unlimited management over A's
YES, they entered into a nominate contract of lease to
properties, stating that A withholds no power from B
service in the absence of a relation of principal and agent
and that the agent may execute such acts as he may
between them. (Art. 1644, NCC)
consider appropriate.

Q: A foreign manufacturer of computers and a

Accordingly, B leased A's parcel of land in Manila to C
Philippine distributor entered into a contract whereby
for four (4) years at P60,000.00 per year, payable
the distributor agreed to order 1,000 units of the
annually in advance. B leased another parcel of land of
manufacturer’s computers every month and to resell
A in Caloocan City to D without a fixed term at P3,000.00
them in the Philippines at the manufacturer’s
per month payable monthly. B sold to E a third parcel of
suggested prices plus 10%. All unsold units at the end
land belonging to A located in Quezon City for three (3)
of the year shall be bought back by the manufacturer at
times the price that was listed in the inventory by A to
the same price they were ordered. The manufacturer
B. All those contracts were executed by B while A was
shall hold the distributor free and harmless from any
confined due to illness in the Makati Medical Center.
claim for defects in the units.

Rule on the validity and binding effect of each of the

Is the agreement one for sale or agency? (2000 BAR)
above contracts upon A the principal. Explain your
answers. (1992 BAR)
A: The contract is one of agency, not sale. The notion of sale
is negated by the following indicia: (1) the price is fixed by
A: The agency couched in general terms comprised only acts
the manufacturer with the 10% markup constituting the
of administration. (Art. 1877, NCC) The lease contract on the
commission; (2) the manufacturer reacquires the unsold
Manila parcel is not valid, not enforceable and not binding
units at exactly the same price; and (3) warranty for the
upon A. For B to lease the property to C, for more than one
units was borne by the manufacturer. The foregoing indicia
(1) year, A must provide B with a special power of attorney.
negate sale because they indicate that ownership over the
(Art.1877, NCC)
units was never intended to transfer to the distributor.

The lease of the Caloocan City property to D is valid and

Q: CX executed a special power of attorney (SPA)
binding upon A. Since the lease is without a fixed term, it is
authorizing DY to secure a loan from any bank and to
understood to be from month to month since the rental is
mortgage his property covered by the owner’s
payable monthly. (Art. 1687, NCC)
certificate of title. In securing a loan from MBank, DY
did not specify that he was acting for CX in the
The sale of the Quezon City parcel to E is not valid and not
transaction with said bank. Is CX liable for the bank
binding upon A. B needed a special power of attorney to
loan? Why or why not? Justify your answer. (2004 BAR)
validly sell the land. (Arts. 1877 & 1878, NCC) The sale of the
land at a very good price does not cure the defect of the
A: YES, CX is liable for the bank loan because he authorized
contract arising from lack of authority.
the mortgage on his property to secure the loan contracted
by DY. If DY later defaults and fails to pay the loan, CX is
liable to pay. However, his liability is limited to the extent of
the value of the said property.

153 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
IV. CREDIT TRANSACTIONS
Q: In the province, a farmer couple borrowed money
from the local merchant. To guarantee payment, they
left the Torrens Title of their land with the merchant,
for him to hold until they pay the loan. Is there a
his deposit account, the Shanghainese Bank discovered
a scam wherein the funds in the account of another
depositor in the bank was withdrawn by an impostor.
Shanghainese Bank suspected Saachi to be the
impostor and filed a criminal case of estafa against him.
While the case was still pending with the prosecutor’s
office, the bank took over Saachi’s savings deposit on
the basis of the Holdout Agreement. (2018 BAR)

(a) What kind of contract is created when a

a) Contract of pledge;
depositor opens a deposit account with a
b) Contract of mortgage;
bank?
c) Contract of antichresis; or
d) None of the above?
A: A contract of simple loan is created when a depositor
opens a deposit account with a bank. Fixed, savings and
Explain. (2017, 1998, 1997, 1996 BAR)
current deposits of money in banks and similar institutions
shall be governed by the provisions concerning simple loan.
A: NONE OF THE ABOVE. There is no pledge because only
(Art. 1980, NCC) The creditor is the depositor, while the
movable property may be pledged. (Art. 2094, NCC) At all,
debtor is the bank.
there was a pledge of the paper or document constituting
the Torrens Title, as a movable by itself, but not of the land
(b) In this case, did the bank have the right to
which the title represents. There is no mortgage because no
take over Saachi’s bank deposit?
deed or contract was executed in the manner required by
law for a mortgage. (Arts. 2085 to 2092 & Arts. 2124 to 2131,
A: NO, the bank did not have the right to take over Saachi’s
NCC) There is no contract of antichresis because no right to
bank deposit. In the case of Metropolitan Bank & Trust Co. v.
the fruits of the property was given to the creditor. (Art.
Rosales (G.R. No. 183204, 13 Jan. 2014), it was held that the
2132, NCC)
“Hold Out” clause, which was similar to the Holdout
Agreement in the instant case, can be invoked only if there
A contract of simple loan was entered into with security
was a valid and existing obligation arising from any of the
arrangement agreed upon by the parties which is not one of
sources of obligation enumerated in Art. 1157, NCC, to wit:
those mentioned above.
law, contracts, quasi-contracts, delict, and quasi-delict. The
only possible source of obligation of Saachi to Shanghainese
Bank based on the given facts is delict. As the criminal case
A. LOANS filed by the bank against Saachi was still pending and no
(2018, 2016, 2005, 2004, 2001, 1993 BAR) final judgment of conviction has been rendered, Saachi had
no valid and existing obligation to the bank; thus, the bank
had no right to take over the deposits to Saachi. (UPLC
1. KINDS Suggested Answers)

MUTUUM
Q: Distinguish briefly but clearly between mutuum and
commodatum. (2004 BAR)
COMMODATUM
A: In mutuum, the object borrowed must be a consumable
Q: Before he left for Riyadh to work as a mechanic,
thing the ownership of which is transferred to the borrower
Pedro left his Adventure van with Tito, with the
who incurs the obligation to return the same consumable to
understanding that the latter could use it for one year
the lender in an equal amount, and of the same kind and
for his personal or family use while Pedro works in
quality. Whereas, in commodatum, the object borrowed is
Riyadh. He did not tell Tito that the brakes of the van
usually a non-consumable thing the ownership of which is
were faulty. Tito had the van tuned up and the brakes
not transferred to the borrower who incurs the obligation
repaired. He spent a total amount of P15,000.00. After
to return the very thing to the lender.
using the vehicle for two weeks, Tito discovered that it
consumed too much fuel. To make up for the expenses,
Q: Saachi opened a savings bank account with
he leased it to Annabelle. Two months later, Pedro
Shanghainese Bank. He made an initial deposit of Php
returned to the Philippines and asked Tito to return the
100,000.00. Part of the bank opening forms that he was
van. Unfortunately, while being driven by Tito, the van
required to sign when he opened the account was a
was accidentally damaged by a cargo truck without his
Holdout Agreement which provided that should he
fault. (2005 BAR)
incur any liability or obligations to the bank, the bank
shall have the right to immediately and automatically
(a) Who shall bear the P15,000.00 spent for the
take over his savings account deposit. After he opened
repair of the van? Explain.

U N I V E R S IT Y O F S A N T O T O M A S 154
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
A: The contract between Pedro and Tito is one of
commadatum. Of the P15,000.00 spent, Pedro, the bailor,
shall bear the expenses for the repair of the faulty brakes,
they being extraordinary expenses incurred due to the non-
disclosure by the bailor of the defect or fault; Tito, on the
other hand, shall shoulder that part of the P15,000.00 spent
for the tune-up, said expense being ordinary for the use and
preservation of the van.
A: NO, B is not obliged to pay A for the use of the passenger
jeepney because commodatum is essentially gratuitous.
(Art. 1933, NCC)
(c) Is B liable to A for the loss of the jeepney?
A: YES, because B devoted the thing to a purpose different
from that for which it has been loaned. (Art. 1942(2), NCC)

(b) Who shall bear the costs for the van's fuel, 2. INTEREST
oil and other materials while it was with
Tito? Explain.
Q: With regard to an award of interest in the concept of
actual and compensatory damages, please state the
A: Tito, the bailee, shall bear the costs for the fuel and other
guidelines regarding the manner of computing legal
materials as they are considered ordinary expenses for the
interest in the following situations:
use and preservation of the thing loaned. (Art. 1941, NCC)

Consider the issuance of BSP-MB Circular No. 799,

(c) Does Pedro have the right to retrieve the
which became effective on 01 July 2013. (2016 BAR)
van even before the lapse of one year?
Explain.
(a) When the obligation is breached and it
consists in the payment of a sum of money
A: NO, Pedro cannot demand the return of the van until after
like a loan or forbearance of money; and
the expiration of the one- year period stipulated. However, if
in the meantime he should have urgent need of the van, he
A: When the obligation is breached and it consists in the
may demand its return or temporary use.
payment of sum of money like a loan or forbearance of
money, in the absence of stipulation, the rate of interest
(d) Who shall bear the expenses for the
shall be the legal rate of 6% per annum, (Art. 2209, NCC)
accidental damage caused by the cargo
which was increased to 12% per NB Circular No. 905, series
truck, granting that the truck driver and
of 1982 to be computed from default. The 12% per annum
truck owner are insolvent? Explain.
legal interest shall apply only until 30 June 2013. From 01
July 2013, the new rate of 6% per annum shall be the
A: Both Tito and Pedro shall bear equally the costs of the
prevailing rate of interest when applicable. (Nacar v. Gallery
extraordinary expenses, having been incurred on the
Frames, G.R. No. 189871, 13 Aug. 2013, applying BSP-MB
occasion of actual use of the van by Tito, the bailee, even
Circular No. 799)
though he acted without fault.

(b) When the obligation does not constitute a

Q: A, upon request, loaned his passenger jeepney to B to
loan or forbearance of money.
enable B to bring his sick wife from Paniqui, Tarlac to
the Philippine General Hospital (PGH) in Manila for
A: The interest on the amount of damages awarded may be
treatment. On the way back to Paniqui, after leaving his
imposed at the discretion of the court at the rate of 6% per
wife at the hospital, people stopped the passenger
annum. No interest, however, shall be adjudged on
jeepney. B stopped for them and allowed them to ride
unliquidated claims or damages, except when or until the
on board, accepting payment from them just as in the
demand can be established with reasonable uncertainty.
case of ordinary passenger jeepneys plying their route.
Accordingly, where the demand is established with
As B was crossing Bamban, there was an onrush of lahar
reasonable certainty, the interest shall begin to run from the
from Mt. Pinatubo. The jeep that was loaned to him was
time the claim is made judicially or extra- judicially, but
wrecked. (1993 BAR)
when such certainty cannot be so reasonably established at
the time the demand is made, the interest shall begin to run
(a) What do you call the contract that was
only from the date the judgment of the court is made (at
entered into by A and B with respect to the
which time the quantification of damages may be deemed to
passenger jeepney that was loaned by A to B
have been reasonably ascertained). The actual base for the
to transport the latter’s sick wife to Manila?
computation of legal interest shall, in any case, be on the
amount finally adjudged. (Nacar v. Gallery Frames, G.R. No.
A: The contract is called “commodatum”. (Art. 1933, NCC)
189871, 13 Aug. 2013)

(b) Is B obliged to pay A for the use of the

passenger jeepney?

155 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
Q: Laica and Jessica, who are best friends, are both
engaged in moneylending at predatory interest rates. B. DEPOSIT
Running out of funds, Laica borrows Php 2,000,000.00 (1998, 1997 BAR)
from 6 of 7 Jessica for two months at a monthly interest
rate of 10%. Jessica releases the borrowed amount
after Laica signs a promissory note. Laica then relends
Q: X, who has a savings deposit with Y Bank in the sum
to Monica the borrowed amount of Php 2,000,000.00
of P1,000,000.00 incurs a loan obligation with the said
for two months, at an interest rate of 30%. After two
Bank in the sum of P800,000.00 which has become due.
months, Laica fails to pay Jessica, prompting Jessica to
When X tries to withdraw his deposit, Y Bank allows
file a collection suit against the former, for the Php
only P200,000.00 to be withdrawn, less service charges,
2,000,000.00 principal and 10% interest per month
claiming that compensation has extinguished its
pursuant to their agreement. Laica counters that the
obligation under the savings account to the concurrent
monthly interest rate of 10% is exorbitant and should
amount of X’s debt. X contends that compensation is
be reduced to the legal rate of interest at 6% per
improper when one of the debts, as here, arises from a
annum. Which between the positions of Laica and
contract of deposit. Assuming that the promissory note
Jessica is tenable? Explain briefly. (2022 BAR)
signed by X to evidence the loan does not provide for
compensation between said loan and his savings
A: LAICA’S position is tenable. The imposition of an
deposit, who is correct? (1998 BAR)
unconscionable rate of interest on a money debt, even if
knowingly and voluntarily assumed, is immoral and unjust.
A: Y Bank is correct. Art. 1287, NCC does not apply. All the
Interest rates must be viewed merely as compensation to
requisites of Art. 1279, NCC are present. In the case of Gullas
the creditor for money lent to another which he or she could
v. PNB (G.R. No. L-43191, 13 Nov. 1935), the Court held: “The
have otherwise used for his or her own purposes at the time
Civil Code contains provisions regarding compensation (set
it was lent. As such, the interest rates must be reasonable
off) and deposit. These portions of Philippine Law provide
and should not be a means for predatory gain. (Megalopolis
that compensation shall take place when two persons are
Properties Inc. v. D'Nhew Lending Corporation, G.R. No.
reciprocally creditor and debtor of each other. In this
243891, 07 May 2021)
connection, it has been held that the relation existing
between a depositor and a bank is that of creditor and
The interest rate of 10% per month imposed by Laica which
debtor… As a general rule, a bank has a right of set off of the
translates to 120% per annum or 20 times the legal rate of
deposits in its hands for the payment of any indebtedness
interest is clearly excessive and unconscionable and while
to it on the part of a depositor.” Hence, compensation took
it may not be contrary to law, it is contrary to morals. Thus,
place between the mutual obligations of X and Y Bank.
Laica should be held liable for legal interest from the date of
default. (Central Bar Q&A by Paguirigan, 2023)
Q: In order to secure a bank loan, XYZ Corporation
surrendered its deposit certificate, with a maturity date
of 01 Sept. 1997 to the bank. The corporation defaulted
on the due repayment of the loan, prompting the bank
to encash the deposit certificate. XYZ Corporation
questioned the above action taken by the bank as being
a case of pactum commissorium. The bank disagrees.
What is your opinion? (1997 BAR)

A: There is no pactum commissorium here. Deposits of

money in banks and similar institutions are governed by the
provisions on simple loans. (Art. 1980, NCC) The
relationship between the depositor and a bank is one of
creditor and debtor. Basically, this is a matter of
compensation as all the elements of compensation are
present in this case. (BPI v. Court of Appeals, G.R. No. 104612,
10 May 1994)

U N I V E R S IT Y O F S A N T O T O M A S 156
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 QuAMTO (1987-2022)
Q: What is the difference between "guaranty" and
C. GUARANTY AND SURETYSHIP "suretyship"? (2010 BAR)
(2019, 2018, 2010, 1997 BAR)
A: Guaranty and Suretyship distinguished:

1. The obligation in guaranty is secondary; whereas,

Q: Amador obtained a loan of P300,000 from Basilio
in suretyship, it is primary.
payable on 25 Mar. 2012. As security for the payment of
his loan, Amador constituted a mortgage on his
2. In guaranty, the undertaking is to pay if the
residential house and lot in Basilio's favor. Cacho, a
principal debtor cannot pay; whereas, in
good friend of Amador, guaranteed and obligated
suretyship, the undertaking is to pay if the principal
himself to pay Basilio, in case Amador fails to pay his
debtor does not pay.
loan at maturity. (2013 BAR)

3. In guaranty, the guarantor is entitled to the benefit

1) If Amador fails to pay Basilio his loan on 12 Mar.
of excussion; whereas, in suretyship the surety is
2012, can Basilio compel Cacho to pay?
not entitled.

(A) No, Basilio cannot compel Cacho to pay

4. Liability in guaranty depends upon an independent
because as guarantor, Cacho can invoke the
agreement to pay the obligations of the principal if
principle of excussion, i.e., all the assets of
they fail to do so; whereas, in suretyship, the surety
Basilio must first be exhausted.
assumes liability as a regular party.
(B) No, Basilio cannot compel Cacho to pay
because Basilio has not exhausted the
5. The guarantor insures the solvency of the principal
available remedies against Amador.
debtor; whereas, the surety insures the debt.
(C) Yes, Basilio can compel Cacho to pay because
the nature of Cacho's undertaking indicates
6. In a guaranty, the guarantor is subsidiarily liable;
that he has bound himself solidarily with
whereas, in a suretyship, the surety binds himself
Amador.
solidarity with the principal debtor. (Art. 2047,
(D) Yes, Basilio can compel Cacho who bound
NCC)
himself to unconditionally pay in case
Amador fails to pay; thus the benefit of
Q: C Corp. entered into a contract with D Inc. for the
excussion will not apply.
construction of the latter’s production warehouse. In
consideration thereof, D Inc. was obliged to pay C Corp.
A: (B) Basilio has in his favor a Real Estate Mortgage and he
the amount of P50,000,000.00 within a period of one
should exhaust his legal remedies against Amador. (Art.
(1) month from the time of the project’s completion. To
2058, NCC)
secure the payment of the said sum, D. Inc entered into
a surety agreement with S Company.
2) If Amador sells his residential house and lot to
Diego, can Basilio foreclose the real estate
After more than a month from the completion date of
mortgage?
the project, C Corp. remained unpaid. Claiming that it
was suffering from serious financial reverses, D Inc,
(A) Yes, Basilio can foreclose the real estate
asked C Corp. for an extension of three (3) months to
mortgage because real estate mortgage
pay the P50,000,000.00 it still owed to which C Corp.
creates a real right that attaches to the
agreed. However, after more than (3) months, D Inc.
property.
still refused to pay. Hence, C Corp. proceeded to collect
(B) Yes, Basilio can foreclose the real estate
the above sum from the surety, S Company.
mortgage. It is binding upon Diego as the
mortgage is embodied in a public
F or its part, S Company refused the claim and raised the
instrument.
defense that the extension of time granted by C Corp. to
(C) No, Basilio cannot foreclose the real estate
D Inc. without its consent released it from liability.
mortgage. The sale confers ownership on the
(2019 BAR)
buyer, Diego, who must therefore consent.
(D) No, Basilio cannot foreclose the real estate
a. Will the defense of S Company against the claim
mortgage. To deprive the new owner of
hold water? Explain.
ownership and possession is unjust and
inequitable.
A: YES, the defense is tenable. As a rule, an extension
granted by the creditor to the debtor without the
A: (A) Art. 2126, NCC. The mortgage directly and
knowledge and consent of the guarantor extinguishes the
immediately subjects the property upon which it is
guaranty. (Art. 2079, Civil Code.) This provision of the law
imposed, whoever the possessor may be to the fulfillment
has been held to be applicable to a surety. (Autocorp Group
of the obligation for whose security it was constituted.

157 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
v. Intra Strata Assurance Corporation, G.R. No. 166662, 27
June 2008 citing Manila Surety and Fidelity Co., Inc. vs. Batu
Corporation and Company, G.R. No. L-9353, 21 May 1957) An
essential alteration in the terms of the loan agreement
without the consent of the surety extinguishes the latter's
obligation. Thus, any agreement between the creditor and
the principal debtor which essentially varies the terms of
the principal contract, without the consent of the surety,
will release the surety from liability. (Security Bank and
Trust Co. vs. Cuenca G.R. No. 138544, 03 Oct. 2000) By
agreeing to extend the term of the loan D without the
knowledge of S, the latter is released from liability. (Central
Bar Q&A by Paguirigan, 2023)
b. Assuming that S Company instead refused the
claim on the ground that C Corp. has yet to
exhaust D Inc.’s property to satisfy the claim
before proceeding against it, will this defense
prosper? Explain.
A: NO, the defense of S company will not prosper. The
liability of a surety is different from that of a guarantor
because while the latter is entitled to the benefit of
excussion, the former is not. Hence, the creditor may
proceed directly against the surety without the need of
going against the principal debtor. Under the law, if a person
binds himself solidarily with the principal debtor, the
contract is one of suretyship and as such the provisions of
the Code on solidary obligations shall apply. In a solidary
obligation, the creditor may proceed against anyone of the
solidary debtors or some or all of them simultaneously. (Art.
1216, NCC). Thus, there is no need for C to exhaust the
properties of D before proceeding against S. (Central Bar
Q&A by Paguirigan, 2023)
Q: Sebastian, who has a pending assessment from the
Bureau of Internal Revenue (BIR), was required to post
a bond. He entered into an agreement with Solid Surety
Company (SSC) for SSC to issue a bond in favor of the
BIR to secure payment of his taxes, if found to be due. In
consideration of the insurance of the bond, he executed
and Indemnity Agreement with SSC whereby he agreed
to indemnify the latter in the event that he was found
liable to pay the tax. The BIR eventually decided against
Sebastian, and judicially commenced an action against
both Sebastian and SSC to recover Sebastian’s unpaid
taxes. Simultaneously, BIR also initiated action to
foreclose on the bond.
Even before paying the BIR, SSC sought indemnity from
Sebastian on the basis of the Indemnity Agreement.
Sebastian refused to pay since SSC had not paid the BIR
anything yet, and alleged that the provision in the
Indemnity Agreement which allowed SSC to recover
from him, by mere demand, even if SSC had not yet paid
the creditor, was void for being contrary to law and
public policy.
Can Sebastian legally refuse to pay? (2018 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: NO, Sebastian cannot legally refuse to pay. A stipulation
in an indemnity agreement providing that the indemnitor
shall pay the surety as soon as the latter becomes liable to
make payment to the creditor under the terms of the bond,
regardless of whether the surety has made payment
actually or not, is valid and enforceable; in accordance
therewith, the surety may demand from the indemnitor
even before the creditor has paid. (Security Bank and Trust
Co., Inc. v. Globe Assurance Co., Inc., 58 OG 3708, 30 Apr. 1962)
Under the terms of the contract, Sebastian’s obligation to
indemnify became due and demandable from the moment
he has incurred liability and not from the moment of
payment. (UPLC Suggested Answers)
Q: AB sold to CD a motor vehicle for and in
consideration of P120,000, to be paid in twelve monthly
equal instalments of P10,000.00, each instalment being
due and payable on the 15th day of each month starting
Jan. 1997.
To secure the promissory note, CD (a) executed a
chattel mortgage on the subject motor vehicle, and (b)
furnished a surety bond issued by Philamlife. CD failed
to pay more than two (2) instalments.
AB went after the surety but he was only able to obtain
three-fourths (3/4) of the total amount still due and
owing from CD. AB seeks your advice on how he might,
if at all recover the deficiency.
How would you counsel AB? (1997 BAR)
A: YES, he can recover the deficiency. The action of AB to go
after the surety bond cannot be taken to mean a waiver of
his right to demand payment for the whole debt. The
amount received from the surety is only payment pro tanto,
and an action may be maintained for a deficiency debt.
D. REAL ESTATE MORTGAGE
Q: The right of a mortgagor in a judicial foreclosure to
redeem the mortgaged property after his default in the
performance of the conditions of the mortgage but
before the sale of the mortgaged property or
confirmation of the sale by the court, is known as (2011
BAR)
(A) accion publiciana.
(B) equity of redemption.
(C) pacto de retro.
(D) right of redemption.
A: (B) Equity of redemption.
Q: Lito obtained a loan of P1,000,000 from Ferdie,
payable within one year. To secure payment, Lito
executed a chattel mortgage on a Toyota Avanza and a
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 QuAMTO (1987-2022)
real estate mortgage on a 200-square meter piece of
property. (2013 BAR)
(a) Would it be legally significant - from the point
of view of validity and enforceability - if the loan
and the mortgages were in public or private
instruments?
A: From the point of view of validity and enforceability,
there would be legal significance if the mortgage was in
public or private instrument. As for the loan, there is no
legal significance except if interest were charged on the
loan, in which case the charging of interest must be in
writing. A contract of loan is a real contract and is perfected
upon the delivery of the object of the obligation (Art. 1914,
NCC). Thus, a contract of loan is valid and enforceable even
if it is neither in a private nor in a public document. As a rule,
contracts shall he obligatory in whatever form they may
have been entered into provided all the essential requisites
for their validity are present. With regard to its
enforceability, a contract of loan is not among those
enumerated under Art. 1403(2), NCC, which are covered by
the Statute of Frauds. It is important to note that under Art.
1358, NCC, all other contracts where the amount involved
exceeds five hundred pesos must appear in writing, even a
private one. However, the requirement is not for the validity
of the contract, but only for its greater efficacy.
With regard the chattel mortgage, Act No. 1508, the Chattel
Mortgage Law, requires an affidavit of good faith stating
that the chattel mortgage is supposed to stand as security
for the loan; thus, for validity of the chattel mortgage, it
must be in a public document and recorded in the Chattel
Mortgage Register in the Registry of Deeds.
A real estate mortgage under the provisions of Art. 2125,
NCC requires that in order that a mortgage may be validly
constituted the document in which it appears be recorded.
If the instrument is not recorded, the mortgage is
nevertheless valid and binding between the parties. Hence,
for validity of both chattel and real estate mortgages, they
must appear in a public instrument. But for purposes of
enforceability, it is submitted that the form of the contract,
whether in a public or private document, would be
immaterial (Mobil Oil v. Diocares, G.R. No. L-26371, 30 Sept.
1969). Also, under Art. 1358, NCC, acts and contracts which
have for their object the creation or transmission of real
rights over immovable property must be in a public
document fur greater efficacy, and a real estate mortgage is
a real right over immovable property.
(b) Lito's failure to pay led to the extra-judicial
foreclosure of the mortgaged real property.
Within a year from foreclosure, Lito tendered a
manager's check to Ferdie to redeem the
property. Ferdie refused to accept payment on
the ground that he wanted payment in cash: the
check does not qualify as legal tender and does
not include the interest payment. Is Ferdie's
refusal justified?
159
A: Ferdie’s refusal is justified. A check, whether a manager’s
check or ordinary check, is not legal tender, and an offer of
a check in payment of a debt is not a valid tender if
payment and may be refused receipt by the obligee or
creditors. (Philippine Airlines v. Court of Appeals, GR. No. L-
49188, 30 Jan. 1990) Mere delivery of checks does not
discharge the obligation under a judgment. A check shall
produce the effect of payment only when they have been
cashed or when through the fault of the creditor, they have
been impaired. (Art. 1249, NCC)
However, it is not necessary that the right of redemption be
exercised by delivery of legal tender. A check may be used
for the exercise of right of redemption, the same being a
right and not an obligation. The tender of a check is
sufficient to compel redemption but is not in itself a
payment that relieves the redemptioner from his liability to
pay the redemption price. (Bianca v. Gimenez, G.R. No.
132768, 09 Sept. 2005) Redemption within the period
allowed by law is not a matter of intent but a question of
payment of valid tender of full redemption price within the
said period. Whether the redemption is being made under
Act 3135 or under the General Banking Law, the mortgagor
or his assignee is required to tender payment to make said
redemption valid. (Heirs of Quisumbing v. PNB, GR. No.
178242, 20 Jan. 2009) Moreover, Ferdie's refusal was
justified on the ground that the amount tendered does not
include interest. In order to effect the redemption of the
foreclosed property, the payment to the purchaser must
include the following sums: (a) the bid price; (b) the interest
on the bid price, computed at 1% per month; and (c) the
assessments or taxes, if any, paid by the purchaser, with the
same rate of interest (Sec. 28, Rules of Court). Unless there is
an express stipulation to that effect, the creditor cannot be
compelled to receive partial payment of the prestation. (Art.
1248, NCC)
E. ANTICHRESIS
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
V. COMPROMISE
VI. QUASI-CONTRACTS
(2004, 1995, 1993, 1992 BAR)
Q: DPO went to a store to buy a pack of cigarettes worth
P225.00 only. He gave the vendor, RRA, a P500-peso
bill. The vendor gave him the pack plus P375.00 change.
Was there a discount, an oversight, or an error in the
amount given? What would be DPO’s duty, if any, in case
of an excess in the amount of change given by the
vendor? How is this situational relationship between
DPO and RRA denominated? Explain. (2004 BAR)
A: There was error in the amount of change given by RRA.
This is a case of solutio indebiti in that DPO received
something that is not due them. They have the obligation to
return the P100.00; otherwise, they will unjustly enrich
themselves at the expense of RRA. (Art. 2154, NCC)
DPO has the duty to return to RRA the excess P100 as
trustee under Art. 1456, NCC which provides: If property is
acquired through mistake or fraud, the person obtaining it
is, by force of law, considered a trustee of an implied trust
for the benefit of the person from whom the property
comes. There is, in this case, an implied or constructive trust
in favor of RRA.
Q: Armando owns a row of residential apartments in
San Juan, Metro Manila, which he rents out to tenants.
On 01 Apr. 1991 he left for the United States without
appointing any administrator to manage his
apartments such that uncollected rentals accumulated
for three (3) years. Amparo, a niece of Armando,
concerned with the interest of her uncle, took it upon
herself to administer the property. As a consequence,
she incurred expenses in collecting the rents and in
some instances even spent for necessary repairs to
preserve the property. (1995 BAR)
(a) What juridical relation between Amparo and
Armando, if any, has resulted from Amparo’s
unilateral act of assuming the administration of
Armando’s apartments? Explain.
A: A quasi-contract of negotiorum gestio existed between
Amparo and Armando. She voluntarily took charge of the
agency or management of the business or property of her
uncle without any power from her uncle whose property
was neglected. She is called the gestor negotiorum or
officious manager. (Art. 2144, NCC)
(b) What rights and obligations, if any, does
Amparo have under the circumstances?
Explain.
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: The following provisions state the rights and obligations
of Amparo:
Art. 2145. The officious manager shall perform his
duties with all the diligence of a good father of a family,
and pay the damages which through his fault or
negligence may be suffered by the owner of the property
or business under management.
The courts may, however, increase or moderate the
indemnity according to the circumstances of each case.
Art. 2146. If the officious manager delegates to another
person all or some of his duties, he shall be liable for the
acts of the delegate, without prejudice to the direct
obligation of the latter toward the owner of the business.
The responsibility of two or more officious managers
shall be solidary, unless management was assumed to
save the thing or business from imminent danger.
Art. 2147. The officious manager shall be liable for any
fortuitous event:
1. If he undertakes risky operations which the
owner was not accustomed to embark upon;
2. If he has preferred his own interest to that of the
owner;
3. If he fails to return the property or business after
demand by the owner;
4. If he assumed the management in bad faith.
Art. 2148. Except when the management was assumed
to save the property or business from imminent danger,
the officious manager shall be liable for fortuitous
events: (1) If he is manifestly unfit to carry on the
management; (2) If by his intervention he prevented a
more competent person from taking up the
management.
Art. 2149. The ratification of the management by the
owner of the business produces the effects of an express
agency, even if the business may not have been
successful.
Art. 2150. Although the officious management may not
have been expressly ratified, the owner of the property
or business who enjoys the advantages of the same shall
be liable for obligations incurred in his interest, and
shall reimburse the officious manager for the necessary
and useful expenses and for the damages which the
latter may have suffered in the performance of his
duties. The same obligation shall be incumbent upon
him when the management had for its purpose the
prevention of an imminent and manifest loss, although
no benefit may have been derived.
Art. 2151. Even though the owner did not derive any
benefit and there has been no imminent and manifest
danger to the property or business, the owner is liable
as under the first paragraph of the preceding article,
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 QuAMTO (1987-2022)
provided:
1. The officious manager has acted in good faith, and
2. The property or business is intact, ready to be
returned to the owner.
Art. 2152. The officious manager is personally liable for
contracts which he has entered into with third persons,
even though he acted in the name of the owner, and
there shall be no right of action between the owner and
third persons. These provisions shall not apply:
1. If the owner has expressly or tacitly ratified the
management; or
2. When the contract refers to things pertaining to the
owner of the business.
(a) What is the Juridical relation between X and Y
during X's absence?
A: The juridical relation between X and Y is that of the quasi-
contract of “negotiorum gestio”. Y is the “gestor” or
"officious manager" and X is the “owner.” (Art. 2144, NCC)
(b) Upon the return of X to the barangay, what are
the obligations of Y to X as regards the contract
with Z?
A: Y must render an account of his operations and deliver to
X the price he received for the sale of the harvested fish.
(Art. 2145, NCC)

Q: In Sept. 1972, upon declaration of martial rule in the (c) Upon X's return, what are the obligations of X as
Philippines, A, together with his wife and children regards Y's contract with W?
disappeared from his residence along A. Mabini Street.
Ermita, Manila. B, his immediate neighbor, noticing that A: X must pay the loan obtained by Y from W because X must
mysterious disappearance of A and his family, closed answer for obligations contracted with third persons in the
the doors and windows of his house to prevent it from interest of the owner. (Art. 2150, NCC)
being burglarized. Years passed without B hearing from
A and his family, B continued taking care of A's house, (d) What legal effects will result if X expressly
even causing minor repairs to be done at his house to ratifies Y's management and what would be the
preserve it. In 1976, when business began to perk up in obligations of X in favor of Y?
the area, an enterprising man, C, approached B and
proposed that they build stores at the ground floor of A: Express ratification by X provides the effects of an
the house and convert its second floor into a pension express agency and X is liable to pay the commissions
house. B agreed to C’s proposal and together they spent habitually received by the gestor as manager. (Art. 2149,
for the construction of stores at the ground floor and NCC)
the conversion of the second floor into a pension house.
While construction was going on, fire occurred at a
nearby house. The houses at the entire block, including
A's were burned. After the EDSA revolution in February
1986, A and his family returned from the United States
where they took refuge in 1972. Upon learning of what
happened to his house. A sued B for damages, B pleaded
as a defense that he merely took charge of his house
under the principle of negotiorum gestio. He was not
liable as the burning of the house is a fortuitous event.

Is B liable to A for damages under the foregoing

circumstances? (1993 BAR)

A: YES, he would be liable under Art. 2147 (1), NCC because

he used the property for an operation which the operator is
not accustomed to, and in so doing, he exposed them house
to increased risk, namely the operation of a pension house
on the second floor and stores on the first floor.

Q: In fear of reprisals from lawless elements besieging

his barangay, X abandoned his fishpond, fled to Manila
and left for Europe. Seeking that the fish in the fishpond
were ready for harvest, Y, who is in the business of
managing fishponds on a commission basis, took
possession of the property, harvested the fish and sold
the entire harvest to Z. Thereafter, Y borrowed money
from W and used the money to buy new supplies of fish
fry and to prepare the fishpond for the next crop. (1992
BAR)

161 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
VII. TORTS AND DAMAGES
A. PRINCIPLES
1. ABUSE OF RIGHTS
Q: Roberto was in Nikko Hotel when he bumped into a
friend who was then on her way to a wedding reception
being held in said hotel. Roberto alleged that he was
then invited by his friend to join her at the wedding
reception and carried the basket full of fruits which she
was bringing to the affair. At the reception, the wedding
coordinator of the hotel noticed him and asked him,
allegedly in a loud voice, to leave as he was not in the
guest list. He retorted that he had been invited to the
affair by his friend, who however denied doing so.
Deeply embarrassed by the incident, Roberto then sued
the hotel for damages under Arts. 19 and 21 of the NCC.
Will Roberto’s action prosper? Explain. (2012 BAR)
A: It depends. While the hotel has the right to exclude an
uninvited guest from the wedding reception, that does not
give the hotel the license to humiliate Roberto. If the
wedding coordinator of the hotel acted wrongfully e.g., with
abuse of right, unfairly, or in a manner that exposed Roberto
to unnecessary ridicule or shame, his action will pro-per.
Otherwise, Roberto’s action will prosper. The hotel is liable
for the wrongful acts of its employees.
2. UNJUST ENRICHMENT
3. LIABILITY WITHOUT FAULT
4. ACTS CONTRARY TO LAW
Q: Mabuhay Elementary School organized a fieldtrip for
its Grade VI students in Fort Santiago, Manila Zoo, and
Star City. To be able to join, the parents of the students
had to sign a piece of paper that reads as follows:
"I allow my child (name of student), Grade – Section, to
join the school’s field trip on 14 Feb. 2014. I will not file
any claim against the school, administrator or teacher in
case something happens to my child during the trip."
Joey, a 7-year-old student of Mabuhay Elementary
School was bitten by a snake while the group was
touring Manila Zoo. The parents of Joey sued the school
for damages. The school, as a defense, presented the
waiver signed by Joey’s parents. Was there a valid
waiver of right to sue the school? Why? (2014 BAR)
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
A: NO, there was no valid waiver of the right to sue the
school. A waiver to be valid must have three requisites 1)
existence of the right; 2) legal capacity of the person
waiving the right and 3) the waiver must not be contrary to
law, morals, good customs, public order or public policy or
prejudicial to a third person with a right recognized by law.
In the case presented, the waiver may be considered
contrary to public policy as it exonerates the school from
liability for future negligence. The waiver in effect allows
the school to not exercise even ordinary diligence.
5. ACTS CONTRARY TO MORALS
B. CLASSIFICATION OF TORTS
(2012, 2002 BAR)
1. INTENTIONAL
2. NEGLIGENT
3. STRICT LIABILITY
C. THE TORTFEASOR
(2015, 2014, 2010, 2006, 2005, 2003, 2002, 2001,
2000, 1998, 1997, 1996, 1992, 1991 BAR)
Q: A driver of a bus owned by company Z ran over a boy
who died instantly. A criminal case for reckless
imprudence resulting in homicide was filed against the
driver. He was convicted and was ordered to pay P2
Million in actual and moral damages to the parents of
the boy who was an honor student and had a bright
future. Without even trying to find out if the driver had
assets or means to pay the award of damages, the
parents of the boy filed a civil action against the bus
company to make it directly liable for the damages.
(2015 BAR)
a. Will their action prosper?
A: YES, the action will prosper. The liability of the employer
in this case may be based on quasi-delict and is included
within the coverage of independent civil action. It is not
necessary to enforce the civil liability based on culpa
aquiliana that the driver or employee be proven to be
insolvent since the liability of the employer for the quasi-
delicts committed by their employees is direct and primary
subject to the defense of due diligence on their part. (Arts.
2176 & 2180, NCC)
162
 QuAMTO (1987-2022)
b. If the parents of the boy do not wish to file a
separate civil action against the bus company,
can they still make the bus company liable if the
driver cannot' pay the award for damages? If so,
what is the nature of the employer's liability
and how may civil damages be satisfied?
A: YES, the parents of the boy can enforce the subsidiary
liability of the employer in the criminal case against the
driver. The conviction of the driver is a condition sine qua
non for the subsidiary liability of the employer to attach.
Proof must be shown that the driver is insolvent. (Art. 103,
RPC)
Q: On 05 May 1989, 16-year-old Rozanno, who was
issued a student permit, drove to school a car, a gift
from his parents. On even date, as his class was
scheduled to go on a field trip, his teacher requested
him to accommodate in his car, as he did, four (4) of his
classmates because the van rented by the school was
too crowded. On the way to a museum which the
students were scheduled to visit, Rozanno made a
wrong maneuver, causing a collision with a jeepney.
One of his classmates died. He and the three (3) others
were badly injured. (2010 BAR)
(a) Who is liable for the death of Rozanno’s
classmate, and the injuries suffered by Rozanno
and his 3 other classmates? Explain.
A: At the time the incident occurred in May 1989, Rozanno
was still a minor. Being a minor, Art. 218, FC applies.
Pursuant to Art. 218, FC, the school, its administrators, and
teachers shall be liable for the acts of minor Rozanno
because of the special parental authority and responsibility
that they exercise over him. The authority applies to all
authorized activities, whether inside or outside the
premises of the school, entity, or institution. The field trip
on which occasion Rozanno drove the car, was an
authorized activity, and, thus, covered by the provision.
Furthermore, the parents of Rozanno are subsidiarily liable
pursuant to Art. 219, FC, and principally liable under Art.
221, FC if they are negligent.
(b) How about the damage to the jeepney? Explain.
A: With respect to the damages caused to the jeepney, only
Rozanno should be held liable because his negligence or
tortuous act was the sole, proximate and immediate cause
thereof.
(c) Under the same facts, except the date of
occurrence of the incident, this time in mid-1994,
what would be your answer? Explain.
A: Since Rozanno was 16 years old in 1989, if the incident
happened sometime in the middle of 1994, Rozanno have
been 21 years old at the time. Hence, he was already of legal
age. The law reducing the age of majority to 18 years took
effect in December 1989. Being of legal age, Arts. 218, 219,
163
and 221, FC, are no longer applicable. In such case, only
Rozanno will be personally responsible for all the
consequences of his act unless his school, or his parents
were themselves also negligent and such negligence
contributed to the happening of the incident. In that event,
the school or his parents are not liable under Arts. 218, 218
or 221, FC, but will be liable under general provision on the
NCC on quasi-delict.
Q: Primo owns a pet iguana which he keeps in a man-
made pond enclosed by a fence situated in his
residential lot. A typhoon knocked down the fence of
the pond and the iguana crawled out of the gate of
Primo’s residence. N, a neighbor who was passing by,
started throwing stones at the iguana, drawing the
iguana to move toward him. N panicked and ran but
tripped on something and suffered a broken leg. Is
anyone liable for N’s injuries? Explain. (2010 BAR)
A: No one is liable. The possessor of an animal or whoever
may make use of the same is responsible for the damage it
may cause, although it may escape or be lost. This
responsibility shall cease only in case the damage should
come from force majeure or from the fault of the person who
has suffered damage. (Art. 2183, NCC)
Q: Arturo sold his Pajero to Benjamin for P1 Million.
Benjamin took the vehicle but did not register the sale
with the LTO. He allowed his son Carlos, a minor who
did not have a driver's license, to drive the car to buy
pan de sal in a bakery. On the way, Carlos driving in a
reckless manner, sideswiped Dennis, then riding a
bicycle. As a result, he suffered serious physical
injuries. Dennis filed a criminal complaint against
Carlos for reckless imprudence resulting in serious
physical injuries. (2006 BAR)
(a) Can Dennis file an independent civil action
against Carlos and his father Benjamin for
damages based on quasi-delict? Explain.
A: YES, Dennis can file an independent civil action against
Carlos and his father for damages based on quasi-delict
there being an act or omission causing damage to another
without contractual obligation. Under Sec. 1 of Rule 111 of
the 2000 Rules on Criminal Procedure, what is deemed
instituted with the criminal action is only the action to
recover civil liability arising from the act or omission
punished by law. An action based on quasi-delict is no
longer deemed instituted and may be filed separately. (Sec.
3, Rule 111, 2000 Rules of Criminal Procedure)
(b) Assuming Dennis' action is tenable, can
Benjamin raise the defense that he is not
liable because the vehicle is not registered
in his name? Explain.
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A: NO, Benjamin cannot raise the defense that the vehicle is
not registered in his name. His liability, vicarious in
character, is based on Art. 2180 because he is the father of
a minor who caused damage due to negligence. While the
suit will prosper against the registered owner, it is the
actual owner of the private vehicle who is ultimately liable.
(Duavit v. Court of Appeals, G.R. No. L-29759, 18 May 1989)
The purpose of car registration is to reduce difficulty in
identifying the party liable in case of accidents. (Villanueva
v. Domingo, G.R. No. 144274, 14 Sept. 2004)
Q: Tony bought a Ford Expedition from a car dealer in
Muntinlupa City. As payment, Tony issued a check
drawn against his current account with Premium Bank.
Since he has a good reputation, the car dealer allowed
him to immediately drive home the vehicle merely on
his assurance that his check is sufficiently funded.
When the car dealer deposited the check, it was
dishonored on the ground of “Account Closed.” After an
investigation, it was found that an employee of the bank
misplaced Tony's account ledger. Thus, the bank
erroneously assumed that his account no longer exists.
Later it turned out that Tony's account has more than
sufficient funds to cover the check. The dealer however,
immediately filed an action for recovery of possession
of the vehicle against Tony for which he was terribly
humiliated and embarrassed. Does Tony have a cause
of action against Premium Bank? Explain. (2006 BAR)
A: YES, Tony may file an action against Premium Bank for
damages under Art. 2176, NCC. Even if there exists a
contractual relationship between Tony and Premium Bank,
an action for quasi-delict may nonetheless prosper. The
Supreme Court has consistently ruled that the act that
breaks the contract may also be a tort. There is a fiduciary
relationship between the bank and the depositor, imposing
utmost diligence in managing the accounts of the depositor.
The dishonor of the check adversely affected the credit
standing of Tony; hence, he is entitled to damages. (Singson
v. BPI, G.R. No. L-24932, 27 June 1968; American Express
International, Inc. v. IAC, G.R. No. 72383, 09 Nov. 1988;
Consolidated Bank and Trust v. Court of Appeals, G.R. No. L-
70766 09 Nov. 1998)
Q: Under the law on quasi-delict, aside from the persons
who caused injury to persons, who else are liable under
the following circumstances: (2005 BAR)
(a) When a 7-year-old boy injures his playmate
while playing with his father's rifle. Explain.
A: The parents of the 7-year-old boy who caused injury to
his playmate are liable under Art. 219, FC, in relation to Art.
2180, NCC, since they exercise parental authority over the
person of the boy. (Tamargo v. Court of Appeals, G.R. No.
85044, 03 June 1992; Elcano v. Hill, G.R. No. L-24803, 26 May
1977)
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(b) When a domestic helper, while haggling for
a lower price with a fish vendor while
buying foodstuffs for her employer's family,
slaps the fish vendor, causing her to fall and
sustain injuries. Explain.
A: Employer of the domestic helper who slapped a fish
vendor. Under Art. 2180(5), NCC, "employers shall be liable
for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even
though the former is not engaged in any business or
industry."
(c) A carpenter in a construction company
accidentally hits the right foot of his co-
worker with a hammer. Explain.
A: The owner of the construction company. Art. 2180(4)
states that "the owners and managers of an establishment
or enterprise are likewise responsible for damages caused
by their employees in the service of the branches in which
the latter are employed or on the occasion of their
functions."
(d) A 15-year-old high school student stabs his
classmate who is his rival for a girl while
they were going out of the classroom after
their last class. Explain.
A: The school, teacher, and administrator as they exercise
special parental authority. (Art. 2180(7), NCC, in relation to
Arts. 218 & 219, FC)
(e) What defense, if any, is available to them?
A: The defense that might be available to them is the
observance of a good father of the family to prevent the
damage. (Art. 2180(8), NCC)
Q: OJ was employed as professional driver of MM
Transit bus owned by Mr. BT. In the course of his work,
OJ hit a pedestrian who was seriously injured and later
died in the hospital because of the accident. The
victim’s heirs sued the driver and the owner of the bus
for damages. Is there a presumption in this case that Mr.
BT, the owner, had been negligent? If so, is the
presumption absolute or not? Explain. (2004 BAR)
A: YES, there is a presumption of negligence on the part of
the employer. However, such presumption is rebuttable.
The liability of the employer shall cease when they prove
that they observed the diligence of a good father of a family
to prevent damage. (Art. 2180, NCC) When the employee
causes damage due to his own negligence while performing
his own duties, there arises the juris tantum presumption
that the employer is negligent, rebuttable only by proof of
observance of the diligence of a good father of a family.
(Metro Manila Transit v. Court of Appeals, G.R. No. 104408,
21 June 1993; Delsan Transport Lines v. C&A Construction,
G.R. No. 156034, 01 Oct. 2003) Likewise, if the driver is
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 QuAMTO (1987-2022)
charged and convicted in a criminal case for criminal
negligence, BT is subsidiarily liable for the damages arising
from the criminal act.
Q: As a result of a collision between the taxicab owned
by A and another taxicab owned by B, X, a passenger of
the first taxicab, was seriously injured. X later filed a
criminal action against both drivers. (2003, 1997, 1992
BAR)
(a) May both taxicab owners raise the defense
of due diligence in the selection and
supervision of their drivers to be absolved
from liability for damages to X? Reason.
A: It depends. If the civil action is based on a quasi-delict the
taxicab owners may raise the defense of diligence of a good
father of a family in the selection and supervision of the
driver; if the action against is based on culpa contractual or
civil liability arising from a crime, they cannot raise the
defense.
(b) Is it necessary for X to reserve his right to
institute a civil action for damages against
both taxicab owners before he can file a civil
action for damages against them? Why?
A: It depends. If the separate civil action is to recover
damages arising from the criminal act, reservation is
necessary. If the civil action against the taxicab owners is
based on culpa contractual, or on quasi-delict, there is no
need for reservation.
Q: A Gallant driven by John and owned by Art, and a
Corolla driven by its owner, Gina, collided somewhere
along Adriatico Street. As a result of the accident, Gina
had a concussion. Subsequently, Gina brought an action
for damages against John and Art. There is no doubt
that the collision is due to John's negligence. Can Art,
who was in the vehicle at the time of the accident, be
held solidarily liable with his driver, John? (2002, 1998,
1996 BAR)
A: YES. Art may be held solidary liable with John, if it was
proven that the former could have prevented the
misfortune with the use of due diligence. In motor mishaps,
the owner is solidary liable with his driver, if the former,
who was in the vehicle, could have, by the use of due
diligence, prevented the misfortune. (Art. 2184, NCC)
Q: After working overtime up to midnight, Alberto, an
executive of an insurance company drove a company
vehicle to a favorite Videoke bar where he had some
drinks and sang some songs with friends to "unwind".
At 2:00 a.m., he drove home, but in doing so, he bumped
a tricycle, resulting in the death of its driver. May the
insurance company be held liable for the negligent act
of Alberto? Why? (2001 BAR)
165
A: The insurance company is not liable because when the
accident occurred, Alberto was not acting within the
assigned tasks of his employment. It is true that under Art.
2180(5), NCC, employers are liable for damages caused by
their employees who were acting within the scope of their
assigned tasks. However, the mere fact that Alberto was
using a service vehicle of the employer at the time of the
injurious accident does not necessarily mean that he was
operating the vehicle within the scope of his employment.
In Castilex Industrial Corp. v. Vasquez Jr (G.R. No. 132266, 21
Dec. 1999) the Supreme Court held that notwithstanding the
fact that the employee did some overtime work for the
company, the former was, nevertheless, engaged in his own
affairs or carrying out a personal purpose when he went to
a restaurant at 2:00 A.M. after coming out from work. The
time of the accident (also 2:00 A.M.) was outside normal
working hours.
Q: Silvestre leased a car from Avis-Rent-A-Car Co. at the
Mactan International Airport. No sooner had he driven
the car outside the airport when, due to his negligence,
he bumped an FX taxi owned and driven by Victor,
causing damage to the latter in the amount of
P100,000.00. Victor filed an action for damages against
both Silvestre and Avis, based on quasi-delict. Avis filed
a motion to dismiss the complaint against it on the
ground of failure to state a cause of action. Resolve the
motion. (2000 BAR)
A: The motion to dismiss should be granted, AVIS is not the
employer of Silvestre; hence, there is no right of action
against AVIS under Art. 2180, NCC. Not being the employer,
AVIS has no duty to supervise Silvestre. Neither has AVIS
the duty to observe due diligence in the selection of its
customers. Besides, it was given in the problem that the
cause of the accident was the negligence of Silvestre.
Q: Romano was bumped by a minivan owned by the
Solomon School of Practical Arts (SSPA). The minivan
was driven by Peter, a student assistant whose
assignment was to clean the school passageways daily
one hour before and one hour after regular classes, in
exchange for free tuition. Peter was able to drive the
school vehicle after persuading the regular driver, Paul,
to turn over the wheel to him (Peter). Romano suffered
serious physical injuries. The accident happened at
night when only one headlight of the vehicle was
functioning, and Peter only had a student driver's
permit. Consequently, Peter was convicted in the
criminal case. Thereafter, Romano sued for damages
against Peter and SSPA. (1991 BAR)
(a) Will the action for damages against Peter
and SSPA prosper?
A: YES, the action will prosper because at the time he drove
the vehicle, he was not performing his assigned tasks as
provided for by Art. 2180, NCC. With respect to SSPA, it is
not liable for the acts of Peter because the latter was not an
employee as held by Supreme Court in Filamer Christian
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Institute v. Court of Appeals (G.R. No. 75112, 17 Aug. 1991).
Peter belongs to a special category of students who render
service to the school in exchange for free tuition fees.
(b) Will your answer be the same if, Paul, the
regular driver, was impleaded as party
defendant for allowing Peter to drive the
minivan without a regular driver's license?
A: I would maintain the same answer because the incident
did not occur while the employee was in the performance of
his duty as such employee. The incident occurred at
nighttime, and in any case, there was no indication in the
problem that he was performing his duties as a driver.
(c) Is the exercise of due diligence in the
selection and supervision of Peter and Paul
a material issue to be resolved in this case?
A: In the case of Peter, if he were to be considered as
employee, the exercise of due diligence in the selection and
supervision of peter would not be a material issue since the
conviction of Peter would result in a subsidiary liability
where the defense would not be available by the employer.
In the case of Paul, since the basis of subsidiary liability is
the pater familias rule under Art. 2180, NCC, the defense of
selection and supervision of the employee would be a valid
defense.
D. QUASI-DELICT
vs. CULPA CONTRACTUAL vs. CULPA CRIMINAL
Q: The following are the elements of quasi-delict,
except: (2012 BAR)
(a) Act or omission
(b) Fault/negligence
(c) Damage/injury
(d) Pre-existing contract.
A: (d) Pre-existing contract.
Q: Define quasi tort. Who are the persons liable under
quasi torts and what are the defenses available to
them? (2010 BAR)
A: Quasi-tort is considered as the equivalent of quasi-delict.
Hence, the rules of the latter pertaining to persons who can
be held liable and their defenses would also apply.
Those liable for quasi-delict include:
1. Those tortfeasors or the person causing damage to
another through fault or negligence (Art. 2176,
NCC); and
2. Persons vicariously liable under Art. 2180, NCC.
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2023 GOLDEN NOTES
The defenses available include:
a. That the defendant was not negligent or that he
exercised due diligence; (Art. 2176, NCC)
b. That although the defendant is negligent his
negligence is not the proximate cause of the injury;
(Art. 2179, NCC)
c. That the plaintiff's own negligence was the
immediate and proximate cause of his injury; (Art.
2179, NCC)
d. That the person vicariously liable has observed all
the diligence of a good father of a family to prevent
damage; (Art. 2180, NCC)
e. That the cause of action has prescribed after the
lapses; and
f. The fact that the plaintiff had committed
contributory negligence is a partial defense. (Art.
2179, NCC)
NOTE: It is recommended that the examiner exercise
leniency and liberality in grading the answers given to this
question. The term quasi-tort is not a part of legal
developments in civil law. In Philippine legal tradition,
quasi-delict has been treated as the closest civil law
equivalent of the common law tort. In fact, in a number of
Supreme Court decisions, the two terms have been
considered synonymous. In reality, however, the common
law tort is much broader in scope than the civil law quasi-
delict.
In recent developments in common law, the concept of
“quasi-torts” can be considered as the closest common law
equivalent of the civil law concept of quasi-delict. This is
because it is argued that the growing recognition of quasi-
torts as a source of obligation is hinged on the acceptance at
common law of the civil law principles of quasi-delict.
Q: In Jan. 2018, Mrs. A, a married woman on her 6th
month of pregnancy, was crossing a street when she
was suddenly hit by a car being recklessly driven by Mr.
X. As a result, Mrs. A sustained serious injuries and
further, suffered an unintentional abortion. Mrs. A was
hospitalized for 2 months, during which she incurred
₱400,000.00 in medical fees. Her expenses were all duly
substantiated by official receipts. During the two (2)-
month period of her confinement, she was unable to
report for work and earn any salary, which was
established at the rate of ₱50,000.00 per month. Mrs. A
then filed a civil case for damages against Mr. X. (2019
BAR)
a. Based on the case filed by Mrs. A, what is the
source of Mr. X's obligation to her as a result of
his acts? Explain.
A: The source of obligation is quasi-delict because there
were no pre-existing contractual relations between Mrs. A
and Mr. X who are strangers and there was damage done.
For Quasi-Delict to become a source of an obligation these
elements should concur (1) there was damage to the
plaintiff, (2) there is negligence by act or omission of which
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 QuAMTO (1987-2022)
defendant or some person for whose acts he must respond
was guilty, (3) in connection of cause and effect between
such negligence and damage, and (4) there must be no pre-
existing contract. In this case there was a claim for quasi-
delict because all the elements mentioned above concur.
b. May Mrs. A claim actual damages from Mr. X? If
so, how much can Mrs. A claim? Explain.
A: YES, Mrs. A can claim actual damages amounting to
P500,000. Under Art. 2199 of the NCC it provides that
except as provided by law or by stipulation, one is entitled
to actual or compensatory damages only for such pecuniary
loss suffered by him as he has duly proved. The medical fees
totaling P400,000 were duly substantiated by official
receipts, Art. 2200 of the NCC also provides that
indemnification for damages shall comprehend not only the
value of the loss suffered, but also that of the profits which
the obligee failed to obtain. The rate of her salary was
established at P50,000 per month; thus, her inability to
report for work and earn salary for two months entitled her
to a total of P100,000. Mrs. A, therefore, can claim her
expenses for medical fees and two months’ worth of salary
the total of which is P500.000.
c. May Mrs. A claim damages on behalf of her
unborn baby? Explain.
A: NO, Mrs. A cannot claim damages on behalf of her unborn
baby. Birth determines personality. The Court has held that
an action for pecuniary damages on account of personal
injury or death pertains primarily to the one injured, and if
no action for such damages could be instituted on behalf of
the unborn child on account of the injuries it received, no
such right of action could derivatively accrue to its parents
or heirs.
ALTERNATIVE ANSWER:
YES, Mrs. A can claim damages on behalf of her unborn
baby. The Court has held that a conceived child, although yet
unborn, is given by law provisional personality of its own
for all purposes favorable to it, as explicitly provided in Art.
40 of the NCC, which includes being a recipient of donations
under Art. 742 of the NCC, as well as support. A claim for
damages in favor of the unborn should also prosper.
d. What must Mrs. A prove if she wants to recover
moral damages from Mr. X?
A: Mrs. A must prove the following: (1) that she suffered
physical injuries; (2) that Mr. X committed a culpable act or
omission; (3) that the wrongful act or omission of Mr. X is
the proximate cause of the damages she sustained; and (4)
that X’s act or omission is either a criminal offense resulting
to physical injuries or a quasi-delict causing physical
injuries. (Mendoza v. Gomez, G.R. No. 160110, 18 June 2014)
167
Q: Jovencio operated a school bus to ferry his two sons
and five of their schoolmates from their houses to their
school, and back. The parents of the five schoolmates
paid for the service. One morning, Porfirio, the driver,
took a short cut on the way to school because he was
running late, and drove across an unmanned railway
crossing. At the time, Porfirio was wearing earphones
because he loved to hear loud music while driving. As
he crossed the railway tracks, a speeding PNR train
loudly blared its horn to warn Porfirio, but the latter
did not hear the horn because of the loud music. The
train inevitably rammed into the school bus. The strong
impact of the collision between the school bus and the
train resulted in the instant death of one of the
classmates of Jovencio’s younger son.
The parents of the fatality sued Jovencio for damages
based on culpa contractual alleging that Jovencio was a
common carrier; Porfirio for being negligent; and the
PNR for damages based on culpa aquiliana.
Jovencio denied being a common carrier. He insisted
that he had exercised the diligence of a good father of a
family in supervising Porfirio, claiming that the latter
had had no history of negligence or recklessness before
the fatal accident. (2017 BAR)
A) Did his operation of the school bus service for a
limited clientele render Jovencio a common carrier?
Explain your answer.
A: Yes. Jovencio is a common carrier. The true test for a
common carrier is not the quantity or extent of the business
actually transacted, or the number and character of the
conveyances used in the activity, but whether the
undertaking is a part of the activity engaged in by the carrier
that he has held out to the general public as his business or
occupation.
Jovencio operated the school bus as a business and not just
as a casual occupation; he undertook to carry the students
in established routes to and from the school; and he
transported the students for a fee, Jovencio was a common
carrier notwithstanding the limited clientele.
B) In accordance with your answer to the preceding
question, state the degree of diligence to be
observed by Jovencio, and the consequences thereof.
Explain your answer. (Negligence, Standard of Care)
A: Jovencio, as a common carrier, must observe
extraordinary diligence in the vigilance over the goods and
for the safety of the passengers transported by them,
according to all the circumstances of each case. A common
carrier should “carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence
of very cautious persons, with a due regard for all the
circumstances.”
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C) Assuming that the fatality was a minor of only 15
years of age who had no earning capacityat the time
of his death because he was still a student in high
school, and the trial court is minded to award
indemnity, what may possibly be the legal and
factual justifications for the award of loss of earning
capacity? Explain your answer. (In case of Death)
A: If it can be shown that the deceased student was enrolled
in a reputable institution and was able-bodied prior to his
death, the basis for award of loss of earning capacity is the
prevailing minimum wage at the time of the child’s death.
The computation of the child’s life expectancy must be
reckoned from the age of 21 years, which is the age when
the child would have graduated from college and would
have begun to work.
E. PROXIMATE CAUSE
(2018 BAR)
Q: Newlyweds Sam and Sienna had contracted with
Sangria Hotel for their wedding reception. The couple
was so unhappy with the service, claiming, among other
things, that there was an unreasonable delay in the
service of dinner and that certain items promised were
unavailable. The hotel claims that, while there was a
delay in the service of the meals, the same was
occasioned by the sudden increase of guests to 450
from the guaranteed expected number of 350, as stated
in the Banquet and Meeting Services Contract.
In the action for damages for breach of contract
instituted by the couple, they claimed that the Banquet
and Meeting Services Contract was a contract of
adhesion since they only provided the number of guests
and chose the menu. On the other hand, the hotel’s
defense was that the proximate cause of the
complainant’s injury was the unexpected increase in
their guests, and this was what set the chain of events
that resulted in the alleged inconveniences.

Does the doctrine of proximate cause apply in this case?

(2018 BAR)
Q: Gio, single, joined a marathon organized by Takbo
Co. For lack of alternative routes, the marathon course
A: NO, the doctrine does not apply. In the case of Sps. Guanio
included a public road which was not blocked-off from
v. Makati Shangri-la Hotel (G.R. No. 190601, 07 Sept. 2011),
vehicles. Takbo Co. solicited the sponsorship of Kotse
the doctrine of proximate cause, is applicable only in actions
Corp. for added financial support. Gio was hit by a
for quasi-delicts, not in actions involving breach of contract.
jeepney driven by JD on the public road and died. The
The doctrine is a device for imputing liability to a person
parents of Gio sued Takbo Co. and Kotse Corp. for
where there is no relation between him and another party.
damages. The court ruled that Kotse Corp. is solidarily
Where, however, there is a pre-existing contractual relation
liable for damages with Takbo Co. for being one of the
between the parties, it is the parties themselves who make
principal movers of the event due to its sponsorship. Is
law between them. Here, there is a contract, the terms and
the court correct? Explain briefly. (2022 BAR)
conditions of such contract will govern the rights and
obligations between the contracting parties in case of
A: NO, the court is not correct. To be liable for damages, the
breach thereof, not the doctrine of proximate cause. (UPLC
act or omission of the defendant must be the proximate
Suggested Answers)
cause of the resulting injury to the plaintiff. There must be
proof of negligence and that the damage caused was the
consequence of the negligence of the defendant.

In this case, Kotse Corporation merely sponsored the event.

Kotse Corporation's mere sponsorship of the marathon
was, legally speaking, too remote to be the efficient and
proximate cause of the injurious consequences. (Abrogar vs.
Cosmos Bottling Corp., G.R. No. 164749, 15 Mar. 2017) There
was no statement in the facts of the case that Kotse
Corporation was involved in the actual conduct of the race
or that it was guilty of negligence. Thus, it cannot be held
liable for the resulting death of Gio. The liability for the
death may be attributed solely to the organizer Takbo Co.
for its negligence in failing to put up measures to ensure the
safety of the participants in the marathon. (Central Bar Q&A
by Paguirigan, 2023)

U N I V E R S IT Y O F S A N T O T O M A S 168
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
After the surgery, the attending nurses reported that
F. VICARIOUS LIABILITY two (2) sponges were missing. Later, Marta died due to
(2020-21, 2016, 2002 BAR) complications brought about by the sponges that were
left in her stomach. The husband of Marta sued the
hospital and Dr. Jack for damages arising from
negligence in the medical procedure. The hospital
Q: A 12-year-old seventh grade student living in the
raised the defense that Dr. Jack is not its employee as it
company of their parents brough a gun owned by the
did not hire Dr. Jack nor pay him any salary or
father to school. With it, the student shot a classmate
compensation. It has absolutely no control over the
who had been a bully. The student missed, sparing the
medical services and treatment being provided by Dr.
bully. The bully’s parent, incensed by the event, sued
Jack. Dr. Jack even signed an agreement that he holds
the parents of the 12-year-old seventh grade student
the hospital free and harmless from any liability arising
for damages. The defendant parents moved to dismiss
from his medical practice in the hospital.
the suit, claiming that they could never be held liable
for damages since they did not shoot the bully
Is St. Vincent's Hospital liable for the negligence of Dr.
themselves. Should the motion to dismiss be granted on
Jack? Explain your answer. (2016 BAR)
this ground? Explain briefly. (2020-21 BAR)

A: YES, St. Vincent’s Hospital is liable. In the case of

A: NO, the motion to dismiss filed by the parents should not
Professional Services v. Agana (G.R. No. 126297 31 Jan. 2007),
be granted. The argument that no liability attached to them
the Supreme Court held that the hospital is liable to the
because they were not the ones who shot the bully does not
Aganas, not under the principle of respondent superior for
hold water. Under the Family Code, parents and other
lack of evidence of an employer-employee relationship with
persons exercising parental authority shall be civilly liable
Dr. Ampil but under the principle of ostensible agency for
for the injuries and damages caused by the acts or
the negligence of Dr. Ampil, pro hac vice, under the principle
omissions of their unemancipated children living in their
of corporate negligence for its failure to perform its duties
company and under their parental authority subject to the
as a hospital.
appropriate defenses provided by the law. (Art. 221, FC) The
NCC on quasi-delict provides that the obligation imposed by
While it is true that there was insufficient evidence that St.
Art. 2176 is demandable not only for one’s own acts or
Vincent’s Hospital exercised the power of control or
missions but also for those persons for whom one is
wielded such power over the means and the details of the
responsible. However, since the shooting happened inside
specific process by which Dr. Jack applied his skills in
the school, the child was under the special parental
Maria’s treatment, there is ample evidence that St. Vincent’s
authority of the school (Art. 218, FC), it could be argued that
Hospital held out to the patient, Marta, that Dr. Jack was its
the liability of the school is primary while that of the parents
agent (principle of ostensible agency). The two factor that
is subsidiary. (Art. 219, FC) (Bar Q&A by Paguirigan, 2022)
determine apparent authority are present: (1) the hospital’s
implied manifestation to the patient which led the latter to
Q: Dr. Jack, a surgeon, holds clinic at the St. Vincent's
conclude that the doctor was the hospital’s agent; and (2)
Hospital and pays rent to the hospital. The fees of Dr.
the patient’s reliance upon the conduct of the hospital and
Jack are paid directly to him by the patient or through
the doctor, consisted with ordinary care and prudence.
the cashier of the hospital. The hospital publicly
displays in the lobby the names and specializations of
The corporate negligence ascribed to St. Vincent’s Hospital
the doctors associated or accredited by it, including
is different from the medical negligence attributed to Dr.
that of Dr. Jack. Marta engaged the services of Dr. Jack
Jack. The duties of the hospital are distinct from those of the
because of recurring stomach pain. It was diagnosed
doctor-consultant practicing within its premises in relation
that she is suffering from cancer and had to be operated
to the patient; hence, the failure of St. Vincent’s Hospital to
on. Before the operation, she was asked to sign a
fulfill its duties as a hospital corporation gave rise to a direct
"consent for hospital care," which reads:
liability to Marta distinct from that of Dr. Jack.

"Permission is hereby given to the medical, nursing and

Q: Explain the concept of vicarious liability in quasi-
laboratory staff of the St. Vincent's Hospital to perform
delicts. (2002 BAR)
such procedures and to administer such medications
and treatments as may be deemed necessary or
A: The doctrine of vicarious liability is that which renders a
advisable by the physicians of this hospital for and
person liable for the negligence of others for whose acts or
during the confinement."
omission the law makes them responsible on the theory
that they are under their control and supervision.

169 U N I V E R S IT Y O F S A N T O T O M A S
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 CIVIL LAW
A: I would decide in favor of Mr. & Mrs. S. The proprietor of
G. RES IPSA LOQUITUR a building or structure is responsible for the damages
resulting from its total or partial collapse, if it should be due
to the lack of necessary repairs. (Art. 2190, NCC) As regards
the defense of “last clear chance,” the same is not tenable
Q: Explain the following concepts and doctrines and
because according to the SC the doctrine of last clear chance
give an example of each: (2007 BAR)
is not applicable to instances covered by Art 2190 of the
NCC. (De Roy v. Court of Appeals, G.R. L-80718, 29 Jan. 1988)
(a) Concept of trust de son tort (constructive
The role of the common law “last clear chance” doctrine in
trust); and
relation to Art. 2179, NCC is merely to mitigate damages
within the context of contributory negligence. (Phoenix
A: A constructive trust is a trust not created by any word or
Construction, Inc. v. IAC, G.R. No. L-65295, 10 Mar. 1987)
phrase, either expressly or impliedly, evincing a direct
intention to create a trust, but is one that arises to satisfy
the demands of justice. It does not come about by
agreement or intention but mainly operation of law and H. DAMNUM ABSQUE INJURIA
construed as a trust against one who, by fraud, duress, or
abuse of confidence, obtains or holds the legal right to
property which he ought not, in equity and good conscience
to hold. (Heirs of Lorenzo Yap v. Court of Appeals, G.R. No. I. DEFENSES
133047, 07 Aug. 1990)

(b) Doctrine of discovered peril (last clear

Q: A 100-year-old tree inside a university was uprooted
chance).
by strong winds cause by a super typhoon. This was
despite the university’s prior efforts to maintain the
The doctrine of last clear chance states that where the
strength of the tree’s roots. The tree was blown away
plaintiff was guilty of prior or antecedent negligence, but
until it hit a nearby fast-food restaurant where a Bar
the defendant, who had the ultimate opportunity to avoid
candidate was reviewing for the bar examinations. The
the impending harm failed to do so, it is the defendant who
bar candidate, who was then the only person dining
is liable for all the consequences of the accident
inside the fast-food restaurant, suffered physical
notwithstanding the prior negligence of the plaintiff. An
injuries. The super typhoon was enabled by climate
example is where a person was riding a pony on a bridge
change. Can the university be held liable for the
and improperly pulled the pony to the wrong side when he
physical injuries suffered by the Bar candidate? Explain
saw a car coming. The driver of the car did not stop or
briefly (2020-21 BAR)
change direction, and nearly hit the horse, and the
frightened animal jumped to its death. The driver of the car
A: NO, the university cannot be held liable for the physical
is guilty of negligence because he had a fair opportunity to
injuries suffered by the Bar candidate. The facts clearly state
avoid the accident and failed to avail himself of that
that despite the efforts of the university to maintain the
opportunity. He is liable under the doctrine of last clear
strength of the roots of the trees, it was still blown away due
chance. (Picart v. Smith, G.R. No. L-12219, 15 Mar. 1918)
entirely to the occurrence of a fortuitous event which is the
super typhoon. Under the law no person shall be liable for
Q: Mr. and Mrs. R own a burned-out building, the
those events which could not be foreseen or even if foreseen
firewall of which collapsed and destroyed the shop
were inevitable. (Art. 1174, NCC) The event which cause
occupied by the family of Mr. and Mrs. S, which resulted
damage to the bar candidate was entirely independent of
in injuries to said couple and the death of their
human will and neither was there participation of the
daughter. Mr. and Mrs. S had been warned by Mr. & Mrs.
university in the aggravation of the injury. To be liable for
R to vacate the shop in view of its proximity to the
the damages caused, there must be fault or negligence
weakened wall but the former failed to do so.
concurring with the fortuitous event which is absent in this
case.
Mr. & Mrs. S filed against Mr. and Mrs. R an action for
recovery of damages the former suffered as a result of
the collapse of the firewall. In defense, Mr. and Mrs. R
rely on the doctrine of last clear chance alleging that Mr.
and Mrs. S had the last clear chance to avoid the
accident if only they heeded the former’s warning to
vacate the shop, and therefore Mr. and Mrs. R’s prior
negligence should be disregarded.

If you were the judge, how would you decide the case?
State your reasons. (1990 BAR)

U N I V E R S IT Y O F S A N T O T O M A S 170
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
J. NEGLIGENCE
1. STANDARD OF CARE
Q: Dr. Jack, a surgeon, holds clinic at the St. Vincent’s
Hospital and pays rent to the hospital. The fees of Dr.
Jack are paid directly to him by the patient or through
the cashier of the hospital. The hospital publicly
displays in the lobby the names and specializations of
the doctors associated or accredited by it, including
that of Dr. Jack. Marta engaged the services of Dr. Jack
because of recurring stomach pain. It was diagnosed
that she is suffering from cancer and had to be operated
on. Before the operation, she was asked to sign a
“consent for hospital care,” which reads.
“Permission is hereby given to the medical, nursing and
laboratory staff of the St. Vincent’s Hospital to perform
such procedures and to administer such medications
and treatments as may be deemed necessary or
advisable by the physicians of this hospital for and
during the confinement.”
After the surgery, the attending nurses reported that
two (2) sponges were missing. Later, Marta died due to
complications brought about by the sponges that were
left in her stomach. The husband of Marta sued the
hospital and Dr. Jack for damages arising from
negligence in the medical procedure. The hospital
raised the defense that Dr. Jack is not its employee as it
did not hire Dr. Jack nor pay him any salary or
compensation. It has absolutely no control over the
medical services and treatment being provided by Dr.
Jack. Dr. Jack even signed an agreement that he holds
the hospital free and harmless from any liability arising
from his medical practice in the hospital.
Is St. Vincent’s Hospital liable for the negligence of Dr.
Jack? Explain your answer. (2016 BAR)
A: Yes, St. Vincent’s Hospital is liable. (Professional Services
v. Agana, G.R. No.126297, January 31, 2007, 513 SCRA 478).
While it is true that there was insufficient evidence that St.
Vincent’s Hospital exercised the power of control over the
means and the details of the specific process used by Dr.
Jack in Marta’s treatment, there is ample evidence that St.
Vincent’s Hospital held out to the patient that Dr. Jack was
its agent (principle of ostensible agency). The two factors
that determine apparent authority are present: (1) the
hospital’s implied manifestation to the patient which led the
latter to conclude that the doctor was the hospital’s agent;
and (2) the patient’s reliance upon the conduct of the
hospital and the doctor, consistent with ordinary care and
prudence.
171
The corporate negligence ascribed to St. Vincent’s Hospital
is different from the medical negligence attributed to Dr.
Jack. The duties of the hospital are distinct from those of the
doctor-consultant practicing within its premises in relation
to the patient; hence, the failure of St. Vincent’s Hospital to
fulfill its duties as a hospital corporation gave rise to a direct
liability to Marta distinct from that of Dr. Jack.
Q: Liwayway Vinzons-Chato was then the Commissioner
of Internal Revenue while Fortune Tobacco
Corporation is an entity engaged in the manufacture of
different brands of cigarettes, among which are
"Champion," "Hope," and "More" cigarettes.
Fortune filed a complaint against Vinzons-Chato to
recover damages for the alleged violation of its
constitutional rights arising from Vinzons-Chato’s
issuance of Revenue Memorandum Circular No. 37-934
(which re-classified Fortune cigarettes as locally
manufactured with foreign brands and thereby
imposed higher taxes), which the Supreme Court later
declared invalid.
Vinzons-Chato filed a Motion to dismiss arguing that
she cannot be held liable for damages for acts she
performed while in the discharge of her duties as BIR
Commissioner. Is she correct? Explain. (2012 BAR)
A: YES. As a general rule, a public officer is not liable for acts
performed in the discharge of his duties. The exceptions are
when he acted with malice, bad faith, or gross negligence in
the performance of his duty, or when his act is in violation
of the constitutionally guaranteed rights and liberties of a
person under Art. 32.
2. PRESUMPTIONS OF NEGLIGENCE
Q: A van owned by Orlando and driven by Diego, while
negotiating a downhill slope of a city road, suddenly
gained speed, obviously beyond the authorized limit in
the area, and bumped a car in front of it, causing severe
damage to the care and serious injuries to its
passengers. Orlando was not in the car at the time of the
incident. The car owner and the injured passengers
sued Orlando and Diego for damages caused by Diego’s
negligence. In their defense, Diego claims that the
downhill slope caused the van to gain speed and that, as
he stepped on the brakes to check the acceleration, the
brakes locked, causing the van to go even faster and
eventually to hit the car in front of it. Orlando and Diego
contend that the sudden malfunction of the van’s brake
system is a fortuitous even and that, therefore, they are
exempt from any liability. Is this contention tenable?
Explain. (2002 BAR)
A: NO. Mechanical defects of a motor vehicle do not
constitute fortuitous event, since the presence of such
defects would have been readily detected by diligent
maintenance check. The failure to maintain the vehicle in
safe running condition constitutes negligence.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
typhoon was enabled by climate change.
K. DAMAGES
Can the university be held liable for the physical
injuries suffered by the Bar candidate? Explain briefly.
(2020-21 BAR)
Q: A collision occurred at an intersection involving a
bicycle and a taxicab. Both the bicycle rider (a
A: NO, the university cannot be held liable for the injuries
businessman then doing his morning exercise) and the
suffered by the bar candidate. The facts clearly state that
taxi driver claimed that the other was at fault. Based on
despite the efforts of the university to maintain the strength
the police report, the bicycle crossed the intersection
of the roots of the tree, it was still blown away due entirely
first but the taxicab, crossing at a fast clip from the
to the occurrence of a fortuitous event which is the super
bicycle's left, could not brake in time and hit the
typhoon. Under the law, no person shall be liable for those
bicycle's rear wheel, toppling it and throwing the
events which could not be foreseen or even if foreseen were
bicycle rider into the sidewalk five meters away.
inevitable. (Art. 1174, NCC) The event which caused damage
to the bar candidate was entirely independent of human
The bicycle rider suffered a fractured right knee,
will and neither was their participation of the university in
sustained when he fell on his right side on the concrete
the aggravation of the injury. To be liable for the damages
sidewalk. He was hospitalized and was subsequently
caused, there must be fault or negligence concurring with
operated on, rendering him immobile for three (3)
the fortuitous event which is absent in this case. (Bar Q&A
weeks and requiring physical rehabilitation for
by Paguirigan, 2022)
another (3) months. In his complaint for damages, the
rider prayed for the award of P1,000,000 actual
damages, P200,000 moral damages, P200,000
Q: Rommel’s private car, while being driven by the
exemplary damages, P100,000 nominal damages and
regular family driver, Amado, hits a pedestrian causing
P50,000 attorney's fees.
the latter’s death. Rommel is not in the car when the
incident happened. (2009, 1994 BAR)
Assuming the police report to be correct and as the
lawyer for the bicycle rider, what evidence
(a) Is Rommel liable for damages to the heirs of
(documentary and testimonial) and legal arguments
the deceased? Explain.
will you present in court to justify the damages that
your client claims? (2013, 2002, 1994 BAR)
A: YES, Rommel may be held liable for damages if he fails to
prove that he exercised the diligence of a good father of a
A: As lawyer for the bicycle rider, I will present in addition
family (Art. 2180(5), NCC) in selecting and supervising his
to the police report, the medical abstracts to the injuries
family driver. The owner is presumed liable unless he
sustained by my client as well as copies of receipts of
proves the defense of diligence. If the driver was performing
expenses incurred in connection with the treatment of his
his assigned task when the accident happened, Rommel
injuries. I will also present the testimony of my client and
shall be solidarily liable with the driver.
perhaps a bystander who witnessed the incident as to the
circumstances surrounding the accident.
In case the driver is convicted of reckless imprudence and
cannot pay the civil liability, Rommel is subsidiarily liable
As for the legal argument, I will rebut the claim of negligence
for the damage awarded against the driver and the defense
on my client’s part by presenting evidence that my client
of diligence is not available.
has crossed the intersection ahead of the taxicab and it was
the taxicab driver who rapidly cut the path of the bicycle
(b) Would your answer be the same if Rommel
which caused the collision. Also, even assuming that there
was in the car at the time of the accident?
was contributory negligence on the part of my client, I will
Explain.
argue that it will not preclude the recovery of damages but
may only mitigate the damages to which he is entitled.
A: YES, my answer would be the same. Rommel, who was in
the car, shall be liable for damages if he could have
1. KINDS OF DAMAGES prevented the misfortune by the use of due diligence in
(2020-21, 2012, 2009, 2005, 2004 BAR) supervising his driver but failed to exercise it. (Art. 2184,
NCC) In such case, his liability is solidary with his driver.
Q: A 100-year-old tree inside a university was uprooted
by strong winds caused by a super typhoon. This was Q: Dr. and Mrs. Almeda are prominent citizens of the
despite the university’s prior efforts to maintain the country and are frequent travelers abroad. In 1996,
strength of the tree’s roots. The tree was blown away they booked round-trip business class tickets for the
until it hit a nearby fast-food where a Bar candidate was Manila-Hong Kong-Manila route of the Pinoy Airlines,
reviewing for the Bar Examinations. The Bar candidate, where they are holders of Gold Mabalos Class Frequent
who was then the only person dining inside the fast- Flier cards. On their return flight, Pinoy Airlines
food restaurant, suffered physical injuries. The super upgraded their tickets to first class without their

U N I V E R S IT Y O F S A N T O T O M A S 172
2023 GOLDEN NOTES
 QuAMTO (1987-2022)
consent and, in spite of their protestations to be
allowed to remain in the business class so that they
could be with their friends, they were told that the
business class was already fully booked, and that they
were given priority in upgrading because they are elite
members/holders of Gold Mabalos Class cards.
Since they were embarrassed at the discussions with
the flight attendants, they were forced to take the flight
at the first-class section apart from their friends who
were in the business class. Upon their return to Manila,
they demanded a written apology from Pinoy Airlines.
When it went unheeded, the couple sued Pinoy Airlines
for breach of contract claiming moral and exemplary
damages, as well as attorney's fees.
Will the action prosper? Give reasons. (2005, 2004
BAR)
A: YES, the action will prosper. Art. 2201 entitles the person
to recover damages which may be attributed to non-
performance of an obligation. In Alitalia Airways v. Court of
Appeals (G.R. No. 77011, 24 July 1990), when an airline issues
ticket to a passenger confirmed on a particular flight, a
contract of carriage arises and the passenger expects that
he would fly on that day. When the airline deliberately
overbooked, it took the risk of having to deprive some
passengers of their seat in case all of them would show up.
For the indignity and inconvenience of being refused the
confirmed seat, said passenger is entitled to moral damages.
In the given problem, Sps. Almeda had a booked roundtrip
business class ticket with Pinoy Airlines. When their tickets
were upgraded to first class without their consent, Pinoy
Airlines breached the contract. As ruled in Zulueta v. Pan
American (G.R. No. L-28589, 08 Jan. 1973), in case of
overbooking, airline is in bad faith. Therefore, Sps. Almeda
are entitled to damages.
Q: DT and MT were prominent members of the frequent
travelers’ club of FX Airlines. In Hongkong, the couple
were assigned seats in Business Class for which they
had bought tickets. On checking in, however, they were
told they were upgraded by computer to First Class for
the flight to Manila because the Business Section was
overbooked.
Both refused to transfer despite better seats, food,
beverage and other services in First Class. They said
they had guests in Business Class they should attend to.
They felt humiliated, embarrassed and vexed, however,
when the stewardess allegedly threatened to offload
them if they did not avail of the upgrade. Thus, they
gave in, but during the transfer of luggage DT suffered
pain in his arm and wrist. After arrival in Manila, they
demanded an apology from FX’s management as well as
indemnity payment. When none was forthcoming, they
sued the airline for a million pesos in damages. Is the
airline liable for actual and moral damages? Why or
why not? Explain briefly. (2004 BAR)
173
A: FX Airlines committed breach of contract when it
upgraded DT and MT, over their objections, to First Class
because they had contracted for Business Class passage.
However, although there is a breach of contract, DT and MT
are entitled to actual damages only for such pecuniary
losses suffered by them because of such breach. There
seems to be no showing that they incurred such pecuniary
loss. There is no showing that the pain in DT's arm and wrist
resulted directly from the carrier's acts complained of.
Hence, they are not entitled to actual damages. Moreover,
DT could have avoided the alleged injury by requesting the
airline staff to do the luggage transfer as a matter of duty on
their part. There is also no basis to award moral damages
for such breach of contract because the facts of the problem
do not show bad faith or fraud on the part of the airline.
(Cathay Pacific v. Vazquez, G.R. No. 150843, 14 Mar. 2003)
However, they may recover moral damages if the cause of
action is based on Art. 21, NCC for the humiliation and
embarrassment they felt when the stewardess threatened
to offload them if they did not avail of the upgrade.
a) ACTUAL AND COMPENSATORY DAMAGES
(2018, 2016, 2014, 2003, 1991 BAR)
Q: Shasha purchased an airline ticket from Sea Airlines
(SAL) covering Manila-Bangkok-Hanoi-Manila. The
ticket was exclusively endorsable to Siam Airlines
(SMA). The contract of air transportation was between
Shasha and SAL, with the latter endorsing to SMA the
Hanoi-Manila segment of the journey. All her flights
were confirmed by SAL before she left Manila. Shasha
took the flight from Manila to Bangkok on board SAL
using the ticket. When she arrived in Bangkok, she went
to the SAL ticket counter and confirmed her return trip
from Hanoi to Manila on board SMA Flight No. SA 888.
On the date of her return trip, she checked in for SMA
Flight No. SA 888, boarded the plane, and before she
could even settle in on her assigned seat, she was off-
loaded and treated rudely by the crew. She lost her
luggage and missed an important business meeting. She
thereafter filed a complaint solely against SAL and
argued that it was solidarily liable with SMA for the
damages she suffered since the latter was only an agent
of the former.
Should either, or both, SAL and SMA be held liable for
damages that Shasha suffered? (2018 BAR)
A: Only SAL should be held liable for damages. This case has
the same factual milieu with that of China Airlines v. Daniel
Chiok (G.R. No. 152122, 30 July 2003), where the court cited
British Airways v. Court of Appeals (G.R. No. 121824, 29 Jan.
1998), ruling that as the principal in the contract of carriage,
the petitioner was held liable even when the breach of
contract had occurred, not on its own flight, but on that of
another airline. It also cited Lufthansa German Airlines v.
Court of Appeals (G.R. No. 83612, 24 Nov. 1994), in which the
Court held that the obligation of the ticket-issuing airline
remained and did not cease, although another airline had
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
undertaken to carry the passengers to one of their
destinations. In this case, since the contract of air
transportation is between Shasha and SAL, the latter as
principal remains liable as the principal even though the
breach occurred in SMA. SMA cannot be held liable in this
case because the court has no jurisdiction over it. It is
imperative and in accordance with due process and fair play
that SMA should have been impleaded as a party in the
present proceedings before this Court can make a final
ruling on this matter.
ALTERNATIVE ANSWER:
SAL and SMA may be held solidarily liable to Sasha. SAL is
liable to Sasha for breach of the contract of carriage because
it failed to bring Sasha to the latter’s destination as agreed
upon in the contract. SAM, on the other hand, is liable to
Sasha for tort under the provisions of Art. 2176, in relation
to Art. 2180 of the NCC. While SAM is an independent
contractor, and not an agent of SAL, both SAL and SAM are
solidarily liable to Sasha, because a contractual obligation
can be breached by tort and when the same act or omission
causes the injury, one resulting in culpa contractual and the
other in culpa aquiliana, Art. 2194 of the NCC can well apply.
In fine, a liability for tort may arise even under a contract,
where tort is that which breaches the contract. Stated
differently, when an act which constitutes a breach of
contract would have itself constituted the source of a quasi-
delictual liability had no contract existed between the
parties, the contract can be said to have been breached by
tort, thereby allowing the rules on tort to apply. (LRTA v.
Navidad, G.R. No. 145804, 06 Feb. 2003)
ALTERNATIVE ANSWER:
SAL and SMA are jointly liable. In KLM v. Court of Appeals
(G.R. L-31150, 22 July 1915), the Supreme Court held that the
ticket-issuing carrier assumes full responsibility for the
entire trip and shall be held accountable for the breach of
guaranty. Damages may also be exacted from SMA, because
their acts fall under quasi-delict.
ALTERNATIVE ANSWER:
Only SMA is liable. Under the Warsaw Convention, the
ticket-issuing airline subcontracts the contract of carriage
to other airlines, as in this instance, there is no agency
created and the subsequent carrier is liable for the damages
it has incurred. (UPLC Suggested Answers)
Q: Simeon was returning to Manila after spending a
weekend with his parents in Sariaya, Quezon. He
boarded a bus operated by the Sabbit Bus Line (SBL) on
30 Aug. 2013. In the middle of the journey, the bus
collided with a truck coming from the opposite
direction, which was overtaking the vehicle in front of
the truck. Though the driver of the SBL bus tried to
avoid the truck, a mishap occurred as the truck hit the
left side of the bus. As a result of the accident, Simeon
suffered a fractured leg and was unable to report for
U N I V E R S IT Y O F S A N T O T O M A S
2023 GOLDEN NOTES
work for one week. He sued SBL for actual and moral
damages. SBL raised the defense that it was the driver
of the truck who was at fault, and that it exercised the
diligence of a good father of a family in the selection and
supervision of its driver.
Is SBL liable for actual damages? Moral damages? (2018
BAR)
A: It depends on what the source of obligation the action is
based. If based on contract, SBL will be liable for actual
damages, but not moral damages. As a common carrier, SBL
is required to observe extraordinary diligence, and the law
expressly provides that its liability does not cease upon
proof that it exercised the diligence of a good father of a
family in selecting and supervising its driver. It is not liable,
however, for moral damages as Art. 2220, NCC requires it to
have acted fraudulently or in bad faith, which is not
provided by the facts. If the action, however, is anchored
under quasi-delict, SBL will be liable for actual and moral
damages. As a common carrier, it is required to exercise
extraordinary diligence. Moral damages also may be
awarded under Art. 2219, NCC if the plaintiff suffered
physical injuries because of a quasi-delictual act.
ALTERNATIVE ANSWER:
In a contract of carriage, the carrier is required to exercise
extraordinary diligence and is liable whenever a passenger
suffers injury before he reaches his destination. In an action
to recover damages arising from breach of contract of
carriage, the passenger needs only to prove the existence of
the contract and the failure of the carrier to safely bring him
to his destination. Moral damages may not however be
recovered from the carrier unless: (a) the passenger dies, or
(b) the carrier is guilty of bad faith or gross negligence.
Neither applies in this case. (Estrada v. Philippine Rabbit Bus
Co., G.R. No. 203902, 19 July 2017) (UPLC Suggested Answers)
Q: Peter, a resident of Cebu City, sent through Reliable
Pera Padala (RPP) the amount of P20,000.00 to his
daughter, Paula, for the payment of her tuition fee.
Paula went to an RPP branch but was informed that
there was no money remitted to her name. Peter
inquired from RPP and was informed that there was a
computer glitch, and the money was credited to another
person. Peter and Paula sued RPP for actual damages,
moral damages, and exemplary damages.
The trial court ruled that there was no proof of
pecuniary loss to the plaintiffs but awarded moral
damages of P20,000.00 and exemplary damages of
P5,000.00. On appeal, RPP questioned the award of
moral and exemplary damages.
Is the trial court correct in awarding moral and
exemplary damages? Explain. (2016 BAR)
174
 QuAMTO (1987-2022)
A: NO, the trial court is not correct in awarding moral and
exemplary damages. The damages in this case are prayed
for based on the breach of contract committed by RPP in
failing to deliver the sum of money to Paula. Under the
provisions of the NCC, in breach of contract, moral damages
may be recovered when the defendant acted in bad faith or
was guilty of gross negligence (amounting to bad faith) or
in wanton disregard of his contractual obligation. In the
same fashion, to warrant the award of exemplary damages,
the wrongful act must be accomplished by bad faith, and an
award of damages would be allowed only if the guilty party
acted in a wanton, fraudulent, reckless, or malevolent
manner. (Art. 2232, NCC)
Bad faith does not simply connote bad judgment or
negligence. It imports a dishonest purpose or some moral
obliquity and conscious doing of a wrong, a breach of known
duty through some motive or interest or ill will that partake
of the nature of fraud. In this case, however, RPP’s breach
was due to a computer glitch which at most can be
considered as negligence on its part but does not constitute
bad faith or fraud as would warrant the award of moral and
exemplary damages.
Q: If a pregnant woman passenger of a bus were to
suffer an abortion following a vehicular accident due to
the gross negligence of the bus driver, may she and her
husband claim damages from the bus company for the
death of their unborn child? Explain. (2014, 2003 BAR)
A: NO, the spouses cannot recover actual damages in the
form of indemnity for the loss of life of the unborn child.
This is because the unborn child is not yet considered a
person and the law allows indemnity only for loss of life of
person. The mother, however may recover damages for the
bodily injury she suffered from the loss of the fetus which is
considered part of her internal organ. The parents may also
recover damages for injuries that are inflicted directly upon
them, e.g., moral damages for mental anguish that attended
the loss of the unborn child. Since there is gross negligence,
exemplary damages can also be recovered. (Geluz v. Court of
Appeals, G.R. No. L-16439, 20 July 1961)
Q: On her third month of pregnancy, Rosemarie
married to Boy. For reasons known only to her, and
without informing Boy, went to the clinic of X, a known
abortionist, who for a fee, removed and expelled the
fetus from her womb, Boy learned of the abortion 6
months later. Availing of that portion of Sec. 12 of
Article II of the 1987 Constitution which reads:
The State… shall equally protect the life of the mother
and the life of the unborn from conception, xxx which he
claims confers a civil personality on the unborn from the
moment of conception. Boy filed a case for damages
against the abortionist, praying therein that the latter be
ordered to pay him: (a) P30,000.00 as indemnity for the
death of the fetus, (b) P100, 000.00 as moral damages for
the mental anguish and anxiety he suffered, (c)
P50,000.00 as exemplary damages, (d) P20,000.00 as
175
nominal damages, and (e) P25,000.00 as attorney's fees.
May actual damages be also recovered? If so, what facts
should be alleged and proved? (1991 BAR)
A: YES, provided that the pecuniary loss suffered should be
substantiated and duly proved.
b) MORAL DAMAGES
(2002, 1996 BAR)
Q: Ortillo contracts Fabricato, Inc. to supply and install
tile materials in a building he is donating to his
province. Ortillo pays 50% of the contract price as per
agreement. It is also agreed that the balance would be
payable periodically after every 10% performance
until completed. After performing about 93% of the
contract, for which it has been paid an additional 40%
as per agreement, Fabricato, Inc. did not complete the
project due to its sudden cessation of operations.
Instead, Fabricato, Inc. demands payment of the last
10% of the contract despite its non-completion of the
project. Ortillo refuses to pay, invoking the stipulation
that payment of the last amount 10% shall be upon
completion.
Fabricato, Inc. sues for the entire 10% plus damages.
Ortillo counters with claims for (a) moral damages for
Fabricato, Inc.’s unfounded suit which has damaged his
reputation as a philanthropist and respect
businessman in his community, and (b) attorney’s fees.
(2002 BAR)
(a) Does Ortillo have a legal basis for his claim
for moral damages?
A: There is no legal basis to Ortillo’s claim for moral
damages. It does not fall under the coverage of Art. 2219,
NCC.
(b) How about his claim for attorney’s fees,
having hired a lawyer to defend him?
A: Ortillo is entitled to attorney’s fees because Fabricato’s
complaint is a case of malicious prosecution or a clearly
unfounded civil action. (Art. 2208(4)(11), NCC)
Q: Rodolfo, married to Sharon, had an illicit affair with
his secretary, Nanette, a 19-year-old girl, and begot a
baby girl, Rona. Nanette sued Rodolfo for damages:
actual, for hospital and other medical expenses in
delivering the child by caesarean section; moral,
claiming that Rodolfo promised to marry her,
representing that he was single when, in fact, he was
not; and exemplary, to teach a lesson to like-minded
Lotharios.
If you were the judge, would you award all the claims of
Nanette? Explain.
U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW
 CIVIL LAW
A: If Rodolfo's marriage could not have been possibly
known to Nanette or there is no gross negligence on the part
of Nanette, Rodolfo could be held liable for moral damages.
If there is gross negligence in a suit for quasi-delict,
exemplary damages could be awarded.
the water and electric services resulted in Rosa’s suffering
a nervous breakdown. Arts. 20 and 21, NCC authorize the
award of damages for such willful and illegal conduct.
c) NOMINAL DAMAGES

Q: Rosa was leasing an apartment in the city. Because of d) TEMPERATE OR MODERATE DAMAGES
the Rent Control Law, her landlord could not increase
the rental as much as he wanted to, nor terminate her e) LIQUIDATED DAMAGES
lease as long as she was paying her rent. To force her to
leave the premises, the landlord stopped making f) EXEMPLARY OR CORRECTIVE DAMAGES
repairs on the apartment, and caused the water and
electricity services to be disconnected. The difficulty of 2. WHEN DAMAGES MAY BE RECOVERED
living without electricity and running water resulted in
Rosa's suffering a nervous breakdown. She sued the
Q: Liwayway Vinzons-Chato was then the Commissioner
landlord for actual and moral damages. Will the action
of Internal Revenue while Fortune Tobacco
prosper? Explain. (1996 BAR)
Corporation is an entity engaged in the manufacture of
different brands of cigarettes, among which are
A: YES, based on quasi-delict under the human relations
"Champion," "Hope," and "More" cigarettes. Fortune
provisions of the NCC (Arts. 19 to 21) because the act
filed a complaint against Vinzons-Chato to recover
committed by the lessor is contrary to morals. Moral
damages for the alleged violation of its constitutional
damages are recoverable under Art. 2219(10), NCC in
rights arising from Vinzons-Chato’s issuance of
relation to Art. 21, NCC. Although the action is based on
Revenue Memorandum Circular No. 37-934 (which re-
quasi-delict and not on contract, actual damages may be
classified Fortune cigarettes as locally manufactured
recovered if the lessee is able to prove the losses and
with foreign brands and thereby imposed higher taxes),
expenses she suffered.
which the Supreme Court later declared invalid.

ALTERNATIVE ANSWER:
Vinzons-Chato filed a Motion to dismiss arguing that
she cannot be held liable for damages for acts she
YES, based on breach of contract. The lessor has the
performed while in the discharge of her duties as BIR
obligation to undertake repairs to make the apartment
Commissioner. Is she correct? Explain. (2012 BAR)
habitable and to maintain the lessee in the peaceful and
adequate enjoyment of the lease for the entire duration of
A: YES. As a general rule, a public officer is not liable for acts
the contract. (Art. 1654. NCC) Since there was willful breach
performed in the discharge of their duties. The exceptions
of contract by the lessor, the lessee is entitled to moral
are when they acted with malice, bad faith, or gross
damages under Art. 3220, NCC. She is also entitled to actual
negligence in the performance of their duty, or when their
damages, e.g., loss of income, medical expenses, etc., which
act is in violation of the constitutionally guaranteed rights
she can prove at the trial.
and liberties of a person under Art. 32, NCC.

ALTERNATIVE ANSWER:
The public officer is not automatically considered to have
violated the rights or liberties of a person simply because
YES, based on contract and/or on tort. The lessor willfully
the rule the public officer issued was declared invalid by the
breached his obligations under Art. 1654, NCC. Hence, he is
Court. The complainant must still allege and prove the
liable for breach of contract. For such breach, the lessee may
particular injury or prejudice they have suffered from the
recover moral damages under Art. 2220 of the NCC, and
violation of his constitutional right by the issuance of the
actual damages that she may have suffered on account
invalidated rule.
thereof. And since the conduct of the lessor was contrary to
morals, he may also be held liable for quasi- delict. The
The problem does not state any fact from which any malice,
lessee may recover moral damages under Art. 2219(10),
bad faith or gross negligence on the part of Vinzons-Chato
NCC in relation to Art. 21, NCC, and all actual damages which
may be inferred, or the particular injury or prejudice the
she may have suffered by reason of such conduct under
complainant may have suffered as a result of the violation
Arts. 9, 20 and 21, NCC.
of his constitutional rights. Hence, she cannot be held liable.
The facts presented are similar to the facts of the case of
ALTERNATIVE ANSWER:
Vinzons-Chato v. Fortune (G.R. No. 141309, 23 Dec. 2008).

YES, the action should prosper for both actual and moral
damages. In fact, even exemplary damages and attorney’s
fees can be claimed by Rosa, on the authority of Magbanua
v. IAC (G.R. Nos. L-66870-72, 29 June 1985), considering that,
as given, the lessor’s willful and illegal act of disconnecting

U N I V E R S IT Y O F S A N T O T O M A S 176
2023 GOLDEN NOTES
 QuAMTO (1987-2022)

L. DAMAGES IN CASE OF DEATH

M. DUTY OF INJURED PARTY

177 U N I V E R S IT Y O F S A N T O T O M A S
FACULTY OF CIVI L LAW